01990344
06-08-2000
Emilio Riveron, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Emilio Riveron v. Department of Veterans Affairs
01990344
June 8, 2000
Emilio Riveron, )
Complainant, )
)
v. )
) Appeal No. 01990344
Togo D. West, Jr., ) Agency No. 97-1729
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 16, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as the Acting Chief of Thoracic Surgery at the VA Medical Center in Bay
Pines, Florida. Complainant contends that two days after changing the
pacemaker battery on a patient, the Chief of Cardiology stated that
a pause from the pacemaker was recorded and suggested replacing the
pacemaker lead. Believing the situation was an emergency, complainant
went to the Operating Room (OR) and spoke with the staff about scheduling
the surgery. Thereafter, complainant saw the patient and determined
that he would wait to do the operation. Complainant contends that he was
subjected to harassment when his supervisor asked the OR Nurse Supervisor
to document his failure to perform emergency surgery as scheduled.
Believing he was a victim of discrimination, complainant sought EEO
counseling. Subsequently, on June 18, 1997, complainant filed a formal
complaint on the bases of national origin (Hispanic) and reprisal.
Following an investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
the 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 on September 21, 1998.
The agency found that complainant had established a prima facie case of
disparate treatment based on national origin and reprisal. Complainant is
Hispanic, and treated differently than non-Hispanics. Further, after
participating in EEO activity, he was subjected to unfavorable treatment
by management officials who were aware of his activity. According to
the agency, since management's conduct closely followed the protected
activity, an inference of a retaliatory motive could be made.
The agency further determined that complainant had not established a
prima facie case of harassment. While the agency found that the alleged
conduct had occurred, the agency did not find that the conduct involved
verbal or physical conduct that was offensive, or that the agency action
was sufficiently severe and pervasive.
The FAD, moreover, noted that the agency articulated a legitimate
nondiscriminatory reason for its action. The RMO stated that he only
requested documentation on the incident after receiving complaints from
staff members. After reviewing the information, RMO contends that he
took no further action. The incident was not discussed with complainant
and no discipline was taken.
The burden shifted to complainant to show the reasons provided by the
agency were a pretext for discrimination, through either direct or
circumstantial evidence. According to the FAD, complainant failed
to present any evidence showing that the agency's reason was pretext.
Therefore, the agency concluded that complainant failed to prove that
he was discriminated against on the bases of national origin and reprisal
Complainant makes no new contentions on appeal.
As an initial matter, we note that it appears that complainant
contends that he was subjected to harassment. The agency conducted
both a harassment analysis, as well as, a disparate treatment analysis.
We will therefore examine complainant's claim under both frameworks.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, complainant claimed that he suffered discrimination when the RMO
asked the OR Nurse Supervisor to document his failure to perform emergency
surgery as scheduled. In response, the agency argued that documentation
was only requested after the receipt of complaints from staff members.
The Commission finds that the record supports the agency's argument.
According to the affidavits gathered during the investigation, the Nurse
Manager came to RMO upset about the incident with complaint. RMO told her
that without a written Report of Contact, there was nothing he could do.
Thereafter, the Nurse Manager drafted a memorandum rather than a Report
of Contact, which minimized the incident. After reviewing the document,
the RMO decided it was simply a misunderstanding and did not discipline
complainant. Therefore, we find that the agency has articulated a
legitimate, nondiscriminatory reason for its action.
The burden then returns to complainant to demonstrate that the agency's
articulated reason is unworthy of belief. In the instant case, however,
complainant has not provided evidence of pretext. Therefore, we agree
with the agency's finding of no discrimination.
Harassment
To prevail on a claim of harassment, a complainant must show that: (1)
he belongs to the statutorily protected classes and engaged in prior
EEO activity; (2) he was subjected to unwelcome conduct related to her
membership in those classes and his prior EEO activity; (3) the harassment
complained of was based on national origin and his prior EEO activity;
(4) the harassment had the purpose or effect or unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and, (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (March 8, 1994).
Based on a review of the record, we find that complainant has not
established a finding of harassment. Complainant contends that he
was harassed when his supervisor asked the Nurse Manager to document
complainant's failure to perform surgery as scheduled. Even when
considered with the testimony regarding complainant's concerns over the
assignment of cases, namely that he is not given enough cases to maintain
his skills, we find that the OR incident is not sufficiently severe or
pervasive to create a hostile work environment. Moreover, complainant has
not established that the agency's actions were motivated by complainant's
national origin or in reprisal for his prior EEO activity.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we 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:
June 8, 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.