01A22008
03-04-2003
Bryan K. Cahn, Sr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Bryan K. Cahn, Sr. v. Department of Veterans Affairs
01A22008
March 4, 2003
.
Bryan K. Cahn, Sr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22008
Agency No. 200P-2247
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a GS-7 Program Support Assistant/Inpatient Unit Manager in
Nursing Service at the VA Medical Center in Loma Linda, California.
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 21, 2000, alleging that he was discriminated against
on the basis of reprisal for prior EEO activity,<1> when he was subjected
to a continuing violation of harassment and hostile work environment.
Complainant cites the following incidents:
in reprisal for reporting an unethical incident, on February 23, 2000,
he was removed as Chair, African American Committee;
on December 30, 1999, the EEO Program Manager (M1) stated that he
thought they needed a new Chair for the African American Committee,
and stated �What do you want, power? You don't have the skills, you
don't have the abilities�;
on December 29, 1999, complainant had an altercation with M1 regarding
the Martin Luther King Holiday Program;
on July 17, 1999, M1 and the Medical Center Director (D1) told
complainant that they could not afford to have the posters complainant
wanted reproduced by Medical Media;
on May 27, 1999, complainant and members of the African American
Committee met with M1 to discuss details for the Juneteenth Celebration,
and M1 took the meeting out of context and made it a personal issue;
on March 12, 1999, complainant had an altercation with M1 concerning the
African American Committee's non-support of M1's �One Model Concept,�
and concerning complainant's non-receipt of certain documentation that
M1 was supposedly given;
in reprisal for complainant's non-support of M1's �One Model Concept,�
on March 10, 1999, M1 recommended that the BIG Officer attend the BIG
Conference;<2> and
on March 6, 1998, complainant had an altercation with M1 wherein
he removed complainant from his duties as a collateral duty EEO
counselor,<3> as a member of the African American Committee, and as a
member of the Native American Committee.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the complained-of actions by
management, taken separately or in the aggregate, do not constitute
unlawful harassment. Specifically, the FAD found that there was no
connection between the conduct complained-of and complainant's prior
protected activity, and that complainant failed to show that the conduct
at issue created an objectively hostile work environment. Under a
disparate treatment analysis, the FAD found that complainant failed to
set forth a prima facie case of reprisal regarding any incident, with
the exception of (h). The FAD then found that the agency articulated
legitimate, nondiscriminatory reasons for all of its actions which
complainant failed to show were pretexts for retaliation. On appeal,
complainant restates arguments previously made, and contends that
management has taken additional retaliatory actions against him since
the filing of his complaint. The agency requests that we affirm its FAD.
We begin by noting that as this is an appeal from a FAD issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
With respect to complainant's assertion on appeal that he has been
subjected to additional retaliatory actions since he filed the instant
complaint, the Commission's regulations allow a complainant to amend
a complaint at any time prior to the conclusion of the investigation to
include issues or claims like or related to those raised in the complaint.
Additionally, after requesting a hearing, complainant may file a motion
with the EEOC Administrative Judge to amend a complaint to include issues
or claims like or related to those raised in the complaint. 29 C.F.R. �
1614.106(d). However, the regulations do not permit a complainant to
raise a new claim on appeal. Therefore, even assuming arguendo that
complainant's claims are like or related to his instant claim, the
Commission declines to address them on appeal. Singleton v. Social
Security Administration, EEOC Appeal No. 01984784 (April 13, 2001).
Complainant is advised that if he wishes to pursue, through the EEO
process, additional claims, he must contact an EEO counselor within
15 days after he receives this decision. The Commission advises the
agency if complainant seeks EEO counseling regarding this new claim
within 15 days after he receives this decision, February 27, 2002,
which was the date complainant filed the appeal statement in which he
raised this allegation, shall be deemed the date of initial EEO contact,
unless he previously contacted a counselor regarding this matter, in
which case the earlier date shall serve as the EEO counselor contact date.
It is well-settled that harassment based on an individual's prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000); Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 886 (7th Cir. 1998)). In order to establish a claim of
harassment based upon his prior EEO activity, complainant must show that:
(1) he engaged in prior EEO activity; (2) he was subjected to unwelcome
conduct; (3) the harassment complained of was based on his prior EEO
activity; (4) the harassment had the purpose or effect of 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 McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the instant case,
complainant has failed to establish element (3). In so finding, we
note that the record indicates that several of the incidents at issue
were likely caused by a personality conflict between M1 and complainant,
and not by any retaliatory animus against complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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 4, 2003
__________________
Date
1 Complainant states that his prior EEO activity involved: (1) his
collateral duties as EEO Counselor, and (2) his participation as a witness
in the EEO complaint of another employee, between May and September 1998.
The anti-retaliation provisions make it unlawful to discriminate against
an individual because he has opposed any practice made unlawful under
the employment discrimination statutes. This protection applies if
an individual explicitly or implicitly communicates to his employer or
other covered entity a belief that its activity constitutes a form of
employment discrimination that is covered by any of the statutes enforced
by the EEOC. In the instant case, complainant's duties as EEO Counselor
do not constitute protected activity for purposes of the anti-retaliation
provisions however, his participation as a witness in the EEO complaint
of another employee does constitute prior protected activity.
2 BIG refers to the organization �Blacks in Government.�
3 The record indicates that complainant was appointed to a two-year term
as collateral duty EEO Counselor, beginning September 12, 1997 and ending
September 30, 1999.