0120092415
01-19-2011
Dom Wadhwa, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dom Wadhwa,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092415
Agency No. 2004-0642-2008100615
DECISION
Complainant filed a timely appeal from the Agency's final decision, dated April 10, 2009, 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
From November 1999 to October 2006, Complainant was an attending physician within Primary Care Service of the Philadelphia Medical Center. This assignment was followed by a brief reassignment to the VA Northern Indiana Healthcare System. Thereafter, since January 2007, Complainant has been working as a staff physician, Grade 10, in the Compensation and Pension (C& P) section of the Philadelphia Medical Center.
In July and September of 2007, Complainant notified the Chief of Staff (hereinafter "Chief") that he wanted to return to his Primary Care position. Complainant also e-mailed the Director of Primary Care, explaining that his assignment to C & P was involuntary and he wished to return to Primary Care. However, on October 5, 2007, Complainant learned that a younger, Caucasian physician had been hired in Primary Care Service. Complainant had not been provided with an opportunity to apply to his former position. Further, on September 28, 2007, Complainant received a memorandum from the Chief. Therein, the Chief stated that Complainant's emails and letters to various staff members regarding his work assignments were confusing and a waste of senior manager's time. Complainant was warned that if he did not send all future correspondence to his direct supervisor, he may be disciplined. Complainant was also not selected for the Staff Physician position in the Emergency Department.
Believing that the Agency's actions were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On December 11, 2007, Complainant filed a formal complaint based on race (Indian), color (brown), national origin (East Indian), age (over 40), and in reprisal for prior protected activity.
The Agency framed the claims as follows:
(A) Complainant was subjected to harassment when:
1) On October 10, 2007, the Chief of Staff discussed retirement plans with Complainant.
2) On October 5, 2007, Complainant learned that another physician had been hired for the position that he once held in the Primary Care Service.
3) On September 28, 2007, Complainant was accused of failing to follow proper electronic message procedures and the complainant was informed that his continued failure would result in disciplinary action.
4) On September 18, 2007, the Chief of Staff ignored Complainant's request for documentation.
(B) Complainant was subjected to reprisal when:
on February 15, 2007, the Complainant learned that he was denied the opportunity to apply for job vacancy number 174-04, Staff Physician, VM-0602-PHYS, although he had more experience than the individuals that were selected.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination.
Regarding the claim of harassment, claim (A), the Agency found that management's actions were insufficiently severe and/or pervasive to alter the terms and conditions of employment. The Agency considered the incidents to be work-related interactions. Complainant was assigned and kept in C & P based on his capabilities, his performance in the position, and the ongoing need for his services. A half-time physician was hired to do Primary Care. 1 Regarding the retirement conversation, the Chief recalled the conversation as an informal discussion in the hallway. According to the Chief, such exchanges are not typically resisted and are necessary for both educational purposes and succession planning. Regarding possible future discipline, Complainant had previously been asked not to include upper management on emails where there was no "need to know." The Agency found that because Complainant had continued with such correspondence, management took the next step of referring to possible discipline. While the incidents may have been stressful for Complainant, the Agency did not find they created a hostile work environment.
Regarding claim (B), Complainant's non-selection for the Emergency Department, the Agency concluded that management presented a legitimate, non-discriminatory reason for its action. The selectees had Emergency Department experience, while Complainant did not have current or recent experience in the department. Complainant did not present any evidence of pretext, stated the Agency. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant challenges the accuracy and truthfulness of the EEO Counselor's Report. Specifically, Complainant disputes many of the Agency's assertions, including the following matters: that he lacked the necessary research experience with pain and addiction; that the Primary Care position was posted and announced; and that he was reassigned due to his inability to work with other doctors.
Regarding claim (A)(1), Complainant argues that the "discussion of retirement . . . was unacceptable. I have no intention of retiring now or in the foreseeable future." He contends that white physicians were not asked to retire as he was.
Complainant asserts that the threat of discipline, claim (A)(3), for his correspondence stems from a civil action he filed with a co-worker regarding their false arrest in June 2007. He contends that the Office of Regional Counsel is worried about the "truth being exposed to senior agency officials regarding the facts leading to his false arrest lawsuit."
Complainant describes his requests to return to Primary Care, and the Agency's actions. Complainant explains how the C & P responsibilities could be covered, thereby enabling him to work in Primary Care.
In closing, Complainant argues that the agency's final decision was based upon false and unsubstantiated information. In particular, Complainant believes that claim (B) needs to be further investigated and seeks the opportunity to request a hearing.
In response, the Agency reiterates the reasoning set forth in its decision and asks that the Commission affirm its finding of no discrimination. With regard to claim (B), the Agency states that Complainant did not even establish a prima facie case, because there was no evidence that the selecting official was aware of his prior EEO activity. Nonetheless, the Agency articulated a legitimate reason for the non-selection. As to the harassment claim, the Agency maintains that not only were the events insufficient to create a hostile work environment, but that the Agency had non-discriminatory reasons for its actions.
As to Complainant's assertions regarding the quality of the Counselor's Report, the Agency states that it did not rely exclusively on the document. Rather, the record also includes sworn statements from management officials and the Complainant.
Further, the Agency acknowledges that Complainant is upset by management's actions. However, the Agency states that Complainant fails to address the legitimate reasons proffered. For example, Complainant's belief that his supervisors tried to force him into retirement is not supported by any evidence. Similarly, regarding Emergency Department non-selection, the Complainant contends he has the same Board certification and more experience, but fails to address the selecting official's assertion that the selectees had recent Emergency Department experience, which he lacked.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim (A)
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII [or the Rehabilitation Act] must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) s/he is a member of 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. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
The Commission agrees that Complainant has not established a prima facie case of discriminatory harassment. First, we note that most of the incidents comprising Complainant's claim of harassment are not sufficiently severe or pervasive to create a hostile or offensive work environment. Although Complainant was upset by the conversation about retirement, and the reference to future discipline if his prohibited correspondence continued, we find that normal workplace exchanges. Second, we find that with respect to all of the supporting events Complainant has not established a nexus between the Agency's actions and his protected classes. There is no evidence supporting Complainant's belief that he was not returned to Primary Care, for example, because of his race, color, national origin, age or in reprisal for his prior EEO activity.
Claim (B)
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The record in the instant case reflects that the Agency had a legitimate, non-discriminatory reason for not selecting Complainant for the Staff Physician position in the Emergency Department. The selecting official, the Emergency Department Director attested that he only interviewed candidates that had ED experience. Since Complainant did not, he was not interviewed or selected. Additionally, we note that the selecting official was unaware of Complainant's prior EEO activity.
Complainant does not dispute his lack of Emergency Department experience nor does he present any evidence of pretext. Therefore, the Commission agrees Complainant has not proven that his non-selection was discriminatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Agency's decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 19, 2011
__________________
Date
1 Complainant's patient panel had been reassigned during his absence from Primary Care.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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