0120160206
08-02-2017
Gerald L,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerald L,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160206
Hearing No. 410-2015-00219X
Agency No. ARGORDON12AUG05224
DECISION
On October 13, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 6, 2015 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician at the Dwight D. Eisenhower Army Medical Center (DDEAMC) located in Fort Gordon, Georgia. On August 28, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), age (74), and reprisal for prior protected EEO activity when:
1. effective August 9, 2012, the Agency placed Complainant's clinical privileges in abeyance pending investigations of significant unprofessional conduct, including allegations of improper touching, and
2. effective April 16, 2013, the Agency constructively discharged Complainant from employment.2
The Agency conducted an investigation of Complainant's claims. Complainant's colleague (C1), who is female and a lower pay plan than Complainant, alleged that Complainant consistently touched her in some way. C1 alleged that Complainant would embrace her from the front, rest his head on her chest, put his hand on her shoulders, wrap his arms around her upper thighs tightly and rest his head on her hip, try to kiss her on the lips, kiss her on the cheek, and touched her breast at least once. C1 stated that she acted stiff and "non-returning" to Complainant's touching so that he would know his conduct was inappropriate. C1 added that she attended a Sexual Harassment training class in August 2012 that gave her greater confidence that Complainant's conduct was inappropriate in the workplace. During the EEO investigation, Complainant stated that he never touched C1 as she alleged and that she never informed him that she was uncomfortable with his conduct around her. Complainant stated that he was on administrative leave for about nine months, from August 9, 2012 until March 15, 2013, when the Agency informed him that his clinical privileges were reinstated. Complainant stated, once the Agency restored his privileges, he resigned to protect his integrity. Complainant stated, after he received his notice of abeyance, S1 and the Department Chairman (S2)3 said that Complainant could go mow a lawn, which was a derogatory reference to his Hispanic national origin. Additionally, Complainant asserted later that he is from Bolivia and it is typical to his culture to speak at closer distances, shake hands, touch shoulders, or kiss each other.
The DDEAMC Commander (S3) stated the Agency placed Complainant's clinical privileges in abeyance pending two investigations (a criminal and a quality management investigation) of Complainant based on C1's sexual harassment allegations. S3 stated that results from the quality management investigation were reported to a Credentials Committee, which recommended reinstatement of Complainant's clinical privileges.
S1 stated that he, S2, and C1 met, during which time C1 broke down crying and alleged that Complainant touched her private areas. S1 stated that the Agency placed Complainant on paid administrative leave, which is not an adverse action. S1 added that an abeyance of clinical privileges lasts 30 days and becomes a summary suspension if the investigation is not completed within that timeframe. S1 stated that a summary suspension also is not an adverse action. S1 stated that he was informed that, if he could not find a comparable nonclinical position for Complainant, he should place him on paid administrative leave. S1 stated that S2 told Complainant that they would not have him perform any work that is well below his pay grade, such as lawn mowing or yard work, because it would be demeaning to him. S1 noted that Complainant's privileges expired during the summary suspension so Complainant just had to reapply as would have been the case anyway. S1 stated "I based my decisions on the safety and quality of the working environment."
The Agency Quality Management Chief (S4) stated that abeyance of clinical privileges has no lasting impact on a physician's clinical privileges if the privileges are reinstated, as was the case for Complainant. S4 stated that Complainant's privileges expired September 16, 2012 so, when he was reinstated, he was told to reapply for his privileges and they would be backdated to the date of expiration. S4 stated that an abeyance of privileges allows for a fact-finding period to protect the health and safety of patients and to determine if an adverse action is necessary. S4 stated that she was a consultant to the Credential Committee that reviewed the quality management investigation findings, and the Credential Committee recommended reinstating Complainant's clinical privileges. Record of Complainant's abeyance of privileges was destroyed.
The record reveals that C1's allegations against Complainant were investigated by the Army Criminal Investigative Division and a local office of the Federal Bureau of Investigation. The criminal investigation determined that probable cause existed to believe that Complainant committed an act of "abusive sexual contact." Ultimately, C1 decided not to press charges, stating that she was advised that the matter would probably be thrown out of court.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on September 15, 2015. For claim (1), the AJ found that the Agency placed Complainant's clinical privileges in abeyance to conduct investigations that were "eminently reasonable" based on allegations of sexual assault. As to claim (2), the AJ found that Complainant made a well thought-out and deliberate decision to resign from employment, and failed to show that his working conditions were so intolerable as to compel resignation. Summarily, the AJ found no discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute.
Claim (1)
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 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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).
After a review of the record for claim (1), we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. Further, for claim (1), even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the responsible management officials articulated a legitimate, nondiscriminatory reason for the abeyance of privileges, i.e., removal of Complainant from the workplace while criminal and quality management investigations were conducted in response to an allegation of sexual harassment and assault. Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
Claim (2)
Commission precedent establishes that a constructive discharge claim has three elements: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against Complainant created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. Walch v. Department of Justice, EEOC Request No. 05940688 (April 13, 1995) (citing Juanita A. Christoph v. Department of the Air Force, EEOC Request No. 05880575 (April 6, 1990)).
Each federal agency should have an Anti-harassment policy and procedures to stop harassing behavior before it can become unlawful harassment. In this case, a subordinate colleague of Complainant's alleged that Complainant sexually harassed and assaulted her. The Agency removed Complainant's clinical privileges, which removed him from the workplace, to conduct a criminal investigation and a quality management investigation of the harassment allegations. Complainant was placed on paid administrative leave because there was no comparable nonclinical work for Complainant to perform during the investigations. After the investigations were complete, the Agency informed Complainant that his clinical privileges could be reinstated. Complainant did not return to the workplace and resigned citing integrity. We find that the conduct Complainant alleged created intolerable working conditions did not constitute discrimination. We find that Complainant did not establish constructive discharge based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record reveals that Complainant resigned effective April 16, 2013, after receiving a memorandum from the DDEAMC Commander removing the abeyance/suspension of his clinical privileges.
3 We note S2 retired.
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