01991930
11-17-2000
Alam E. Sher, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Alam E. Sher v. Department of Veterans Affairs
01991930
11-17-00
.
Alam E. Sher,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991930
Agency No. 96-0633
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him 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 by the Commission in
accordance with 29 C.F.R. � 1614.405. For the reasons set forth below,
we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was subjected
to discriminatory harassment because of his race (Asian-American) and
national origin (Pakistani) when (1) on or about November 6 through
December 1, 1995, he was allegedly bypassed by the Associate Director
(AD); (2) on or about September 25, October 13 and 27, and December 1
and 7, 1995, the AD allegedly met with his subordinates and the Union,
without him; (3) on or about November 2, 1995, he was allegedly denied
permission to meet with the Station Director (Director); and (4) on or
about November 2, 1995, his hiring authority was allegedly taken away
from him.
BACKGROUND
Complainant filed a formal complaint against the agency. The complaint
took the form of a letter to the Secretary, dated December 27, 1995, and
a formal complaint dated February 7, 1996. Following an investigation, he
was provided a copy of the investigative file and notified of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
initially requested a hearing, but withdrew that request. Accordingly,
the AJ remanded the complaint file to the agency for a final decision.
The agency found that complainant had not been discriminated against.
It is from this decision that complainant now appeals. Complainant did
not offer any new contentions on appeal.
Complainant serves as the Chief, Pharmacy Service at the agency's
Medical Center in Grand Island, Nebraska. He has served in the position
since 1994. According to complainant, there were many problems in the
Pharmacy Service when he first arrived. Among other matters, he cited
excessive overtime usage, which he greatly reduced. The record also
indicates that there were serious problems with interpersonal relations
in the Pharmacy Service. The agency attributed these problems, in part,
to the changes complainant made. Complainant acknowledged that there were
numerous grievances and unfair labor practice charges filed against him.
The Director and the AD testified that the Pharmacy Service had a high
rate of these actions.
With respect to the AD bypassing him, complainant testified that,
after he ordered certain items of furniture, the AD changed the order.
The AD testified that complainant ordered new file cabinets, chairs,
etc. for the office, but there was a pressing need for �ergonomically
safe� furniture for lower level employees. According to the agency, the
AD changed the order from �niceties for private offices� to adjustable
stools and other working furniture. The AD admitted meeting with some of
complainant's subordinates without him being present. The AD indicated
that the employees requested that the meeting be held without complainant
being present.
The Director testified that he only declined to meet with complainant
on one occasion because the meeting concerned problems complainant was
having with the AD, his direct supervisor. According to the Director,
he wanted complainant to make more of an effort to work out matters
with the AD, before coming to him and bypassing the chain of command.
The agency maintained that complainant believed that anything less than
total agreement with his actions by the Director and the AD was evidence
that he was not being adequately supported. Both the Director and the
AD felt that complainant could have done more himself to resolve the
problems within the Pharmacy Service.
Finally, according to complainant, prior to November 1995, he had the
authority to hire employees for the Pharmacy Service. He indicated that
he had previously hired three pharmacists. In the Fall of 1995, however,
he was told that he did not have the authority to hire an individual
whom he had selected and who had moved to Nebraska from another state for
the job. The Chief of Human Resources (Chief) testified that complainant
never had the authority to actually hire anyone. According to her, he
only had the authority to select which applicant would be hired if the
decision was made to fill a vacancy. In the Fall of 1995, the Resource
Utilization Board determined that the vacancy in the Pharmacy Service
would not be filled because the station had to reduce its staffing levels.
According to the Chief, she was the only person who had the authority
to actually commit a vacancy to an applicant. The Chief stated that,
if complainant, in the past, told applicants that they were hired and
they came to work without any problems, then the decision to fill the
vacancy had to have been made elsewhere and the applicant notified by
Human Resources.
The agency, viewing complainant's complaint as a claim of disparate
treatment, found, in pertinent part, that even if he established a
prima facie case of race and national origin discrimination, there
were legitimate, nondiscriminatory reasons for the actions taken by
management officials. Complainant, according to the agency, failed to
establish pretext.
ANALYSIS AND FINDINGS
Although we agree with the agency's determination that complainant
failed to establish discrimination based on disparate treatment,
the record indicates that his actual claim was based on harassment,
not disparate treatment. Therefore, we will address the issue of
harassment below. Harassment of an employee that would not occur
but for the employee's race, color, sex, national origin, age,
disability or religion is unlawful if it is sufficiently patterned or
pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal
No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999) identifies two types of such harassment:
(1) harassment that results in a tangible employment action; and (2)
harassment that creates a hostile work environment. Based on the facts
of this case, we will analyze this matter as an allegation of harassment
that creates a hostile work environment.
To establish a prima facie case of hostile environment harassment, the
complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class;
and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with
the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Evidence of the general work atmosphere, involving employees other than
the complainant, also is relevant to the issue of whether a hostile
environment existed in violation of Title VII. Vinson v. Taylor, 753
F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in
part, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). We find that
complainant has not established a prima facie case of harassment based
on either race or national origin. We find no persuasive evidence that
management's actions were taken in order to harass complainant because of
his race or national origin. We note in this regard the testimony of one
of complainant's subordinates, C-1. C-1 stated that the problems with
complainant arose because of his imperialistic manner. According to
C-1, complainant made decisions without the input of his employees in
contrast to the way former chiefs had operated.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
determination that complainant had not been discriminated against because
of his race and national origin.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___11-17-00___________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.