01975112
09-09-1999
Chelvadaurai Harichandran, Appellant, v. Togo D. West, Jr. Secretary, Department of Veteran Affairs, Agency.
Chelvadaurai Harichandran v. Department of Veteran Affairs
01975112
September 9, 1999
Chelvadaurai Harichandran, )
Appellant, )
) Appeal No. 01975112
v. ) Agency Nos. 95-1100
) 95-1724
Togo D. West, Jr. )
Secretary, ) Hearing Nos. 370-96-X2117
Department of Veteran Affairs, ) 370-96-X2118
Agency. )
)
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Department of Veteran Affairs (agency) concerning 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.
Appellant alleges discrimination based upon his race (South Asian),
national origin (Sir Lankan), color (brown) and reprisal (Prior EEO
activities) when the agency harassed, suspended and terminated him.
The appeal is accepted in accordance with EEOC Order No. 960.001.
PROCEDURAL BACKGROUND
On January 13, 1995, appellant requested EEO counseling and raised
allegations of discrimination pertaining to his prior suspensions
which occurred in January, 1995 and ongoing harassment. Appellant
requested EEO counseling on May 1, 1995, pertaining to appellant's
termination which was effective on May 4, 1995. Appellant filed a
formal complaint on June 2, 1995, adding 13 additional allegations of
discrimination which were not raised during his initial EEO counselor
contact either in January or May, 1995. The additional allegations
are summarized as follows: (1) appellant was transferred to the
Palo Alto (Veteran's Administration Hospital) Virginia from October,
1991 to February 24, 1992;<1>(2) appellant was forced into settling
his prior EEO complaint on October 27, 1992; (3) since February 24,
1992, appellant was placed in an interminable trainee-like status;
(4) on June 23, 1993, appellant's supervisor (S2) attempted an assault
upon appellant; (5) from November 15, 1991 to the present, the agency
engaged in acts of intimidation and persistent accusations, including,
but not limited to, a competency investigation, medical peer review,
threats to reassign workload, and special supervision; (6) from March
8, 1992 to the present, the agency engaged in discriminatory staffing;
(7) on June 2, 1992, appellant's faculty position with the University
of California was discontinued; (8) from March 8, 1992 to the present,
appellant was deprived of administrative opportunities (e.g. office
space, computer equipment, paid travel, administrative leave); (9)
since October, 1992, on several instances, appellant's telephone was
bugged and S2 forced himself into appellant's office through locked
doors despite appellant's objections; (10) appellant's 1992 through
1994 annual proficiency reports were downgraded; (11) since October 27,
1992, appellant was constantly pressured to transfer; (12) appellant was
forced to sign an illegal contract on June 3, 1986 to freeze his grade and
step, thereby denying appellant the opportunity for promotion; and (13)
from March 2, 1992 to the present the agency exploited the basic trust
of vulnerable veterans and their families with manufactured patient and
family complaints, thus creating a toxic and hostile work environment.
On April 20, 1995, appellant's EEO officer requested additional
information regarding the 13 additional allegations in order to determine
if such allegations were timely. Appellant responded to the EEO officer's
request on May 8, 1995. However, appellant failed to attempt to justify
the apparent untimeliness of the new allegations, but rather provided
additional factual information regarding the substance of each allegation.
Thereafter, on May 18, 1995, the EEO officer notified appellant, in
writing, of the precise issues which were accepted for investigation.
The issues accepted were: (1) the incidents of harassment which appellant
alleged during the period between October 27, 1992 (date of settlement
of prior EEO complaint) and February 10, 1995: (2) incidents involving
appellant's suspension; and (3) appellant's termination. No Final Agency
Decision was issued dismissing the new allegations, however, appellant
was advised that if he had other matters to complain about which were not
currently accepted for investigation that he should immediately contact
an EEO Counselor. Appellant never contacted an EEO counselor regarding
the 13 allegations.
An investigation took place on the issues accepted and the AJ issued a
partial decision without a hearing. The AJ determined that after viewing
the record in the light most favorable to appellant, he nevertheless
failed to make out a prima facie case of race, national origin or color
discrimination. However, the AJ determined that appellant raised issues
of material fact with respect to his reprisal claim and held a hearing
with respect to that issue. The hearing took place on October 31, 1996.
Following the hearing, the AJ issued a recommended decision on May
1, 1997 outlining his findings of no discrimination on all issues.
The agency subsequently adopted the AJ's recommended decision. It is
this agency decision which the appellant now appeals.
BACKGROUND
Appellant was hired in 1982 as a Psychiatrist in the agency's Mental
Health Clinic in Martinez, California, which was one of six agency clinics
in California. In 1989, S2 became the Chief of Psychiatric Service and
appellant's second-line supervisor. However, at various times during
appellant's employment, when the position of clinic chief was vacant,
S2 technically served as appellant's first-line supervisor.
On October 27, 1992, appellant signed a settlement agreement on
three previous EEO complaints as full relief. On October 1, 1992,
appellant's clinical privileges were suspended due to complaints regarding
appellant's competency. An investigation was convened which resulted in
the recommendation, inter alia, that a comprehensive, supervisory plan
based on performance criteria be communicated to appellant. However,
the agency did not find appellant incompetent. On November 27, 1992,
appellant's clinical privileges were reinstated and S2 moved forward
in implementing a supervisor plan for appellant. Due to appellant's
ongoing resistance to work with S2, he assigned alternative supervisors
to oversee appellant's work. However, appellant failed to utilize the
supervision assigned to him.
In June, 1993, S2 met with appellant to discuss one of his patients who
committed suicide. The discussion resulted in a heated argument with
both parties shouting.
On August 18, 1994, at a Psychiatry Service meeting, S2 was summarizing
a case, carefully omitting any reference which identified the patient.
Appellant repeatedly interrupted the meeting and stated the proceeding was
aimed at him and that he believed he was being persecuted. Appellant
was reprimanded but refused to sign proposed disciplinary actions.
Appellant often refused to accept disciplinary action or supervision.
On several occasions he would lock himself in his office and refuse to
answer the door, phone, or pages by his colleagues. Since appellant
would refuse to answer the door, S2 would unlock appellant's door and
find him at his desk.
On November 23, 1994, a memorandum was sent to appellant proposing a
suspension for refusing to meet with S2. On December 8, 1994, the Chief
of Staff (S3) notified appellant that he would be suspended for five days
starting on January 3, 1995. Appellant continued to refuse to follow
direct orders of his superiors and on December 19, 1994, S3 ordered
a second suspension for appellant which commenced on January 30, 1995.
Appellant continued to refuse to follow direct orders of his superiors
and accordingly, he was terminated on April 4, 1995.
The AJ Recommended Decision
The AJ determined that, assuming facts in the light most favorable to
the appellant, a prima facie case of race, national origin or color
discrimination was not established. Specifically, the AJ found that
the evidence did not reveal that appellant had been treated differently
than any similarly situated physician outside of his protected classes
who was working under the supervision of S2. In addition, none of
the witnesses testified to behavior or statements that could indicate
discriminatory animus. Moreover, the consensus of the witnesses was that
appellant had problems with interpersonal relationships; that he did not
make himself available to staff when he was requested to provide patient
care; and that he failed to follow S2's directions. Accordingly, the AJ
determined that appellant was not harassed, suspended, and terminated
for any reason related to his race, national origin, or color, even
considering the evidence in the light most favorable to him.
Assuming appellant presented a prima facie case of reprisal
discrimination, the AJ found that the agency articulated a legitimate,
non-discriminatory reason for its employment actions and the
appellant failed to meet his ultimate burden of proving discrimination.
Specifically, the AJ found that appellant was insubordinate on numerous
occasions without any apparent justification, both before and after the
prior EEO activity, and that appellant admitted that his problems with
S2 began well before he filed his prior EEO complaints. In addition,
the AJ found significant the fact that disciplinary actions were not
taken against appellant until three other employees had been unsuccessful
in supervising appellant in place of S2 and no evidence was presented
that these temporary supervisors had been enlisted by S2 to retaliate
against appellant in any way. The AJ also noted the evidence did show
that appellant frequently failed to answer his pages and would refuse
to acknowledge S2 and other staff members who knocked on his door,
even when he was in his office not seeing patients. The record also
indicates that appellant was insubordinate in numerous other ways and
that no other physician failed to follow orders. The AJ determined
that appellant's two suspensions and ultimate termination in 1995, were
simply the culmination of appellant's consistent failure to follow S2's
directions, in particular, his continued refusal to comply with S2's
request that he meet with S2 to discuss performance and conduct issues, a
requirement which S2 imposed on all physicians in the Psychiatric Service.
Lastly, the AJ noted that appellant's actions at the hearing lend credence
to the agency's claim that appellant was disciplined and terminated
because he simply refused to follow the directions of his appointed
supervisors and S2 based on appellant's belief that a physician should
not be "subordinated" to the wishes of others, particularly non-physician
staffers who requested his help. Accordingly, the AJ found that appellant
failed to meet his burden of proving that he was harassed, suspended and
ultimately terminated because of a conspiracy to retaliate against him.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws.
Appellant makes numerous unpersuasive arguments on appeal. For example,
appellant contends that the AJ intentionally delayed the hearing.
However, appellant fails to present any evidence of delay or how he was
harmed by the delay. Accordingly, we find the record does not support
the finding of a delay. Appellant also claims that the AJ improperly
excluded the testimony of appellant's EEO officer. We agree with the AJ
and find that appellant's EEO officer had no personal knowledge of any
facts relevant to this matter and accordingly, do not find the exclusion
of this witness improper. Appellant also argues that the AJ improperly
excluded evidence which pre-dated his EEO settlement in October, 1992.
We find assuming, arguendo, that the pre-settlement allegations were
improperly excluded, the record, nevertheless, fails to support a finding
of discrimination. Assuming the truth of the pre-settlement allegations
and considering the record in its entirety, we find no evidence of
discriminatory animus.
Lastly, appellant argues that the AJ improperly excluded the additional
13 allegations which were presented, for the first time, in appellant's
formal complaint. Since the 13 allegations were treated as background
evidence and developed in the record<2>, the fact that they were not
treated as formal allegations had no effect on the ultimate finding
of no discrimination. Accordingly, any error that may have occurred
was harmless.
In addition to the arguments addressed above, nothing asserted by
appellant on appeal differs significantly from arguments previously
raised and given full consideration by the AJ. Accordingly, we discern
no basis upon which to disturb the AJ's finding of no discrimination
and hereby AFFIRM the agency's final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
9/9/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1It should be noted that this allegation was previously alleged in
appellant's EEO Complaint Nos. 94-1264, 92-1583, and 92-1178. It is also
noted that appellant settled those complaints in October, 1992.
2At the very least, appellant was permitted the opportunity to develop
the record on all 13 allegations.