01991711
05-26-2000
Randy Diener, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Randy Diener, )
Complainant, )
) Appeal No. 01991711
v. ) Agency No. 980317
) 980318
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Randy Diener (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaints 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.<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 alleged that he was harassed and/or discriminated
against on the bases of race (white), religion (Catholic)<2>, sex (male),
national origin (American) and reprisal (prior EEO activity) when:
(1) the Chief of Dental Services (CD) held an off-site retreat for all
staff members on August 29, 1996, but failed to notify complainant that
he was invited;
during 1995 and 1996, CD failed to notify him of staff meetings,
continuing education opportunities, and social service activities;
on September 20, 1996, CD denied his request to attend a conference
without explanation;
on October 2, 1996, complainant became aware that CD stated that he
did not consider complainant to be a member of the Dental Service,
and that he was a member �on paper only;�
on October 8, 1996, the agency's EEO Manager failed to process his
complaints properly;<3> and
on October 9, 1996, the Chief of Labor Relations (CLR) intentionally
allowed a document authorizing complainant to return from a detail to
his clinical practice, to linger on CLR's desk, delaying complainant's
reinstatement.
Complainant's second complaint alleged that he was subjected to harassment
and/or discrimination on the bases of race, religion, sex, national
origin and reprisal when:
on June 3, 1997, the Dental Laboratory Supervisor (DLS) asked a staff
member why complainant was in the lab;
on June 4, 1997, another employee was not charged as absent without
leave (AWOL) when he called in sick but failed to speak with CD or the
Assistant Chief of Dental Service (ACD), whereas complainant had earlier
been placed on AWOL for the same behavior;
on June 11, 1997, ACD accused him of acting in a hostile manner by
reading his mail during a staff meeting;
on June 11, 1997, ACD accused him of padding clinical production and
lying on his curriculum vitae; and
on June 13, 1997, ACD called him at home and informed him that he had to
bring in a note from a doctor for three days of sick leave, whereas the
policy is that a note is not needed until the fourth day of sick leave.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Staff Dentist with the Dental Service at the agency's
West Los Angeles, California facility. Believing he was a victim of
discrimination, complainant sought EEO counseling and subsequently
filed formal complaints on December 9, 1996 and September 22, 1997.
The complaints were investigated concurrently by the same investigator
and, at the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency first concluded that complainant failed to
establish a prima facie case of race, religion, sex, or national origin
discrimination in regard to any of his allegations because, even if true,
none involved adverse personnel actions and there was no evidence that
any of the incidents were related to complainant's race, religion, sex
or national origin. The agency acknowledged, however, that complainant
did establish a prima facie case of reprisal discrimination, noting that
all of the incidents occurred at the same time as one of complainant's
ongoing EEO matters.
The agency articulated a legitimate non-discriminatory reason for its
actions. Namely, that all of the incidents described by complainant
involved routine managerial actions. The agency concluded that while
there was clearly a poor relationship between complainant and CD, there
was no evidence that any actions taken by the agency were motivated by
complainant's prior EEO activity.
Finally, the agency found that complainant had failed to establish that
he was harassed on the bases of his race, religion, sex, national origin,
or prior EEO activity. While the agency acknowledged that the incidents
raised by complainant did occur, at least in some form, it concluded
that they were minor incidents with little or no impact on complainant's
ability to do his work. The agency also noted that there was no evidence
that the incidents were related to complainant's protected bases.
CONTENTIONS ON APPEAL
On appeal, in addition to providing background information about his
relationship with the responsible management officials, complainant argues
that the agency failed to articulate a legitimate non-discriminatory
reason for its harassment and thereby deprived him of an opportunity to
demonstrate pretext. Complainant also argues that he named witnesses
who would support his claims, but that the investigator either did not
speak with them, or did not ask them the appropriate questions.
The agency responds that these claims do not require comment or were
fully addressed in the FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to establish a prima facie case of race, religion,
sex, or national origin discrimination. To establish a prima facie case,
complainant must establish that (1) he is a member of a protected class;
(2) he was subjected to an adverse employment action; and (3) similarly
situated employees outside his protected class were treated more favorably
in like circumstances. Complainant may also meet his initial burden by
presenting other evidence which raises an inference of discrimination.
See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th
Cir. 1975); Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978).
In the case at hand, complainant did not establish that similarly
situated individuals outside of his protected groups were treated more
favorably then he. For example, multiple witnesses testified that
they learned of the retreat through staff meetings and word-of-mouth
and that no one received a personal invitation from CD to the retreat.
Witnesses also testified that information about staff meetings, education
opportunities and social events was available to everyone and that staff
meetings usually occurred at the same time and place. Witnesses indicated
that when calling in sick, they too had to speak directly with certain
designated people or face the possibility of being AWOL.
Moreover, claim nos. 4, 7, and 11 do not rise to the level of
adverse employment actions. A witness indicated that CD told him that
complainant was a member of Dental Services �on paper only.� While such
a statement may suggest ill will, it is not an adverse action. While it
appears that DLS did ask why complainant was in the laboratory, this was
a mere question to a staff member concerning complainant. Similarly,
while AC called complainant at home to remind him, perhaps incorrectly,
that after 3 days of sick leave, a note from a doctor is required,
complainant does not allege that he was disciplined in any way or that
he was otherwise affected by this phone call.
Accordingly, complainant failed to establish a prima facie case of race,
religion, sex, or national origin discrimination.
Complainant has, however, established a prima facie case of retaliation
in regard to certain claims. A prima facie case of retaliation is
established where complainant has produced sufficient evidence to show
that (1) he engaged in protected activity; (2) the agency was aware of
his participation in the protected activity; (3) he was subjected to
adverse treatment; and (4) a nexus exists between the protected action
and the agency's adverse action. See Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass. 1776),
aff'd, 545 F.2d 222 (1st Cir. 1976). The Commission interprets the
statutory retaliation clauses "to prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity."
EEOC Compliance Manual, Section 8 (Retaliation) at 8-13 - 8-14 (May 20,
1998). While this means that retaliation does not have to rise to the
level of materially affecting the terms, conditions, or privileges of
employment, �petty slights and trivial annoyances� are not actionable.
See id. We find that the incidents described in claim nos. 4, 7 and
11, were, if anything, petty slights, and are therefore not actionable.
However, complainant was engaged in EEO activity of which the agency
was aware during the same period that the other, more significant,
incidents occurred and has therefore established a prima facie case in
regard to claim nos. 1-3, 6, and 8-10.
The agency concluded that these incidents were merely routine managerial
actions. More specifically, the record establishes that complainant
was not personally notified that he could participate in the off-site
retreat because the topic was covered in numerous staff meetings
and spread by word-of-mouth. No one received personal notification
and complainant's own assistant was aware that everyone could attend
the retreat. Moreover, the record establishes that the majority of
people working with complainant were aware that staff meetings occurred
at the same time and place each week. Witnesses also testified that
information about staff meetings and other events were clearly posted
and that personal invitations were not the norm.
In regard to CD's denial of complainant's request to attend a conference,
CD explained that the request did not indicate where the conference was
and did not include a flyer announcing the conference, as was required.
CD also indicated that because it was a request for more than 8 hours of
leave, it had to be redone to include a space for the Chief of Staff's
signature, rather than CD's. In regard to claim no. 6, CLR testified that
he does not recall allowing a document pertaining to complainant to linger
for months, but that if this occurred, it was an administrative mistake.
Numerous witnesses testified to their understanding that if they
did not call in and speak to the appropriate persons when requesting
sick leave, they would be risking an AWOL charge. CD testified that
complainant had a habit of calling the main hospital number instead of
Dental Services and that no other employees had that habit. Complainant
offers no evidence that he was treated differently in this regard than
all other employees.
In response to claim no. 9, ACD noted that he told complainant not to read
mail during staff meetings because it was rude and created an image of
hostility, not out of an effort to retaliate against him. ACD explained
that he accused complainant of padding his clinical production because
the numbers complainant reported were so much higher than the norm that
ACD felt there must be a mistake in the reporting method. ACD further
explained that he questioned an entry on complainant's curriculum
vitae because complainant had reported that he had served as �Acting
Chief of the Central Dental Laboratory� but that this was not the case.
Complainant did work at the Central Dental Laboratory for a short period
to sign off on lab cases, but he was never named �Acting Chief.� ACD also
questioned complainant about indicating that he was on faculty at the
Dental School at UCLA for a longer period than he was. ACD indicated
that he never called complainant a liar, but merely discussed these
inaccuracies with complainant as part of his normal managerial duties.
Complainant argues on appeal that because the agency did not provide him
with explanations for their actions, he did not have the opportunity
to establish that those actions were pretextual. Yet a review of the
numerous affidavits in the record, which were available to complainant,
establishes that sufficient explanations were proffered for all the
incidents described by complainant.
Of the 27 witnesses interviewed, two testified to their perceptions that
CD subjected complainant to discrimination, but offered little relevant
evidence to support their perceptions.<4> A former co-worker (CW1,
affidavit B11) noted that complainant had received a judgment from a
special investigator that he should be reinstated to clinical practice,
but that the order was never carried out. CW1 also testified that
complainant was moved to a different building and refused patients in
retaliation for his EEO activity. We note, however, that these alleged
incidents are not part of the current complaints and were therefore not
addressed by the agency. While they do provide background evidence, CW1's
belief that a retaliatory motive existed is not sufficient to establish
that such a motive did exist. A former supervisor of complainant (S1,
affidavit B28) testified that complainant filed out his request for
official leave to attend the conference correctly, but that the request
was still denied. S1 did not respond to CD's contention that the request
did not include the proper information or relevant signature line.
S1 also noted that when he asked CD why complainant was not invited to
the retreat, CD replied that he did not have to invite him and could
invite whomever he wanted to. Again, while this suggests ill will,
it does not establish that CD's behavior was motivated by retaliatory
animus, nor does it suffice to rebut the testimony of numerous witnesses
that no one received an invitation to the retreat and that everyone who
attended regularly scheduled staff meetings was aware of the retreat.
In sum, the evidence offered by complainant in an effort to establish
that the agency's explanations are a pretext for discrimination, only
establishes that complainant had a poor relationship with CD. Complainant
has offered nothing to establish that retaliatory animus motivated the
incidents he describes, other then the fact that he had an ongoing EEO
complaint involving CD. This fact, standing alone, does not establish
that, more likely than not, complainant was subjected to retaliation.
Harassment
Complainant may prove a Title VII cause of action if his evidence shows
that the discriminatory conduct was so severe or pervasive that it created
a hostile work environment on the basis of his race, color, sex, religion,
national origin, or prior EEO activity. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
As discussed above, complainant failed to establish that the incidents he
described were motivated by his race, religion, sex, national origin,
or prior EEO activity. Complainant established that he has a poor
relationship with CD and with other management officials within the
agency. The poor relationship between CD and complainant appears to go
back several years and is known throughout the Dental Services department.
While this situation no doubt produces an extremely stressful, even
hostile, workplace environment for complainant and impacts his ability
to do his work, he has offered no evidence to suggest that any of the
actions taken by the agency were based on his race, religion, sex, or
national origin. Moreover, complainant has offered nothing other than
the existence of his ongoing EEO activity involving CD to establish that
any of the incidents which he describes were based on that activity,
rather than on the explanations given by the agency.
Accordingly, complainant has failed to establish that he was subjected
to harassment on the bases of his race, national origin, sex, religion
or prior EEO activity.
Complaint processing
Complainant also alleged that the EEO Manager failed to process his
complaints properly. EEO Management Directive 110 requires only that
the agency refer complainant to the agency official responsible for the
quality of complaint processing and that those individuals earnestly
attempt to resolve dissatisfaction with the process as early as possible.
See Equal Employment Opportunity Management Directive for 29 Part
1614 (EEO-MD-110), as revised November 9, 1999, at 5-25. A review
of the record reveals that the EEO Program Manager and complainant's
EEO counselor addressed complainant's concerns and satisfied this
requirement.
Complainant argues that all of his contacts with the EEO counselor should
have been processed as separate complaints. After consulting the EEO
Program Manager and the Commission, complainant's EEO counselor correctly
informed complainant that consolidation of complaints was allowed.<5>
Complainant also stated that he felt there were not enough EEO Counselors.
It is clear from the Counselor's Report, however, that complainant's
counselor informed complainant of the counselor's busy schedule and
indicated that another counselor could be selected, but that complainant
agreed to give the counselor more time to work on complainant's concerns.
There is no evidence that complainant's complaint was mishandled or that
complainant was treated differently than others.<6>
Complainant also alleged that the EEO investigator did not ask the
appropriate questions and/or failed to interview certain witnesses
who would have supported complainant's claims. Complainant does not
specify what questions he believes the investigator failed to ask.
While he did name witnesses in his affidavits who were not interviewed,
the record includes detailed testimony from 27 witnesses, in addition to
complainant's testimony. Complainant named two witnesses who allegedly
would have testified about a discrimination complaint filed by CD
against UCLA. Even assuming these witnesses would have testified as
complainant alleged, such testimony does not relate to complainant's
own claims of discrimination. Complainant named numerous witnesses
who were to testify that they were invited to the off-site retreat.
The investigator interviewed many, but not all, of these witnesses.
However, those interviewed made clear that they did not receive a
personal invitation to the retreat, but instead learned of it through
staff meetings.
After a thorough review of the file, we find that the investigator
developed an impartial and appropriate factual record, as required by 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.108(b)).
CONCLUSION
Accordingly, after a careful review of the file, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we find that complainant has failed to
establish that he was subjected to harassment or disparate treatment
as alleged. We therefore AFFIRM the FAD.
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:
May 26, 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 notes that by �religion� he was referring to his �sincerely
held beliefs as to right or wrong.�
3 This allegation will be addressed separately.
4 Other witnesses testified that they were aware that complainant felt
he was subjected to discrimination. Several people testified that CD
and complainant did not like each other and that this dislike, rather
than discrimination, caused problems for complainant.
5 Under the new regulations, effective November 9, 1999, such
consolidation is required. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.606);
see also EEO-MD-110 at 5-13.
6 Complainant also noted during the processing of the current complaints
that the EEO Manager was not enforcing a prior agreement that complainant
be returned to clinical practice. This allegation relates to an incident
which was not the subject of either of the current complaints.