01a51179
03-14-2005
William Gillespie, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
William Gillespie v. Department of Veterans Affairs
01A51179
March 14, 2005
.
William Gillespie,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51179
Agency No. 2004-0659-2003102927
Hearing No. 140-2004-00112X
DECISION
Complainant filed this appeal with the Commission from the November 8,
2004 agency decision implementing the October 25, 2004 decision of the
EEOC Administrative Judge (AJ) finding no discrimination.
In his complaint, complainant, a licensed practical nurse, alleged that
he was discriminated against on the bases of race (African-American),
sex (male), and color (black) when: (1) on March 31, 2003, complainant
met with the Acting Chief of Surgery of the Salisbury Medical Center
concerning a fact-finding in which complainant was accused by a female
surgeon of sexual harassment; (2) on April 8, 2003, complainant was
asked to provide a written response (Report of Contact) to charges of
sexual harassment as alleged by the female surgeon; and (3) complainant
was reassigned to an agency Medical Facility in Winston-Salem, North
Carolina, as a result of the allegations of sexual harassment raised by
the female surgeon.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
The AJ issued a decision without a hearing (summary judgment), finding
no discrimination.
In concluding that complainant was not subjected to discriminatory
harassment, the AJ noted that although complainant had provided evidence
that he was a member of statutorily protected classes, complainant
failed to provide proof that he was subjected to harassment that was
sufficiently severe or pervasive so as to alter the conditions of his
employment and create a hostile work environment. The AJ also noted
that in complainant's affidavit, complainant himself stated that he did
not believe that he was subjected to race, color, or sex discrimination
when he was requested to write the Report of Contact.
In his statement provided to an EEO investigator, complainant
denied that he had sexually harassed the female surgeon and denied
using drugs. He also stated that he had never before been accused of
sexually harassing anyone. Complainant stated that the allegations of
sexual harassment were brought against him because of his race, color,
and sex. Complainant also stated that at the time of the alleged
sexual harassment, he was the only Black male nurse who was working in
the operating room. He also stated that he did not believe that race,
color, or sex discrimination were factors in his having to prepare a
Report of Contact or his reassignment.
The record also contains statements from the Acting Chief of Surgery which
was provided to the EEO investigator. The Acting Chief of Surgery stated
that he was informed by the agency that the female surgeon had accused
complainant of sexual harassment and that she had prepared a memorandum
regarding the allegations. The Acting Chief of Surgery further stated
that he arranged individual meetings with complainant and the female
surgeon to hear both sides of the allegations. He also stated that
he determined that he did not have enough information to support what
the female surgeon had alleged in her memorandum. The Acting Chief of
Surgery stated that he recommended that complainant write up his side of
the story so that complainant's side would be on record and in order for
complainant to protect himself. He further stated that later the Nursing
Manager felt that it would be better for complainant if complainant
agreed to be reassigned to the Winston-Salem facility to remove him from
the situation. The Acting Chief also stated that the Nursing Manager
initiated the reassignment request but that the reassignment was of mutual
agreement and that complainant could return to the Salisbury facility.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. See 29 C.F.R. � 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that complainant failed to establish a prima facie
case of harassment because the allegations of the overall complaint
were not sufficiently severe or pervasive so as to create a hostile
work environment. We note, however, that claim (3) states a separate
and independent claim. Even assuming that complainant had established a
prima facie case of discriminatory harassment or a prima facie case of
a discriminatory reassignment, we find that the agency has articulated
a legitimate, nondiscriminatory reason for its actions. The agency
was merely responding in a non-discriminatory fashion to the sexual
harassment allegations of the female surgeon. The Commission notes
that we have held that an agency is legally obligated to investigate
a claim of sexual harassment. See Rogers v. Department of Defense,
EEOC Request No. 05940157 (February 24, 1995). Further, construing
the evidence to be most favorable to complainant, complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 14, 2005
__________________
Date