01996290
06-08-2000
Emilio Riveron, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Emilio Riveron, )
Complainant, )
)
v. )
) Appeal No. 01996290
Togo D. West, Jr., ) Agency No. 96-2156
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On August 12, 1999, complainant filed a timely appeal with the Commission
from a final agency decision (FAD) pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as Acting Chief of Thoracic Surgery at agency's Medical Center (VAMC) in
Bay Pines, Florida. Complainant alleged that the Responsible Management
Official (RMO) created a hostile work environment by failing to assign
him any thoracic consults after July 1, 1996. Complainant contended
that the thoracic consults were assigned to a white fee-basis surgeon.
Claimant further contended that the lack of consults prevents him
from maintaining his professional skills and will reduce his pay.
Believing he was the victim of discrimination based on national origin,
complainant sought EEO counseling. Subsequently, complainant filed a
formal complaint dated September 10, 1996. Following an investigation,
complainant requested a hearing, but later withdrew the request.
Thereafter, the file was forwarded to the agency for the issuance of a
FAD based on the investigative record.
On July 13, 1999, the agency issued a FAD finding that complainant failed
to prove he was discriminated against. As an initial matter, although
complainant alleged a hostile work environment, the agency determined that
because there was no evidence of insulting verbal or physical conduct
based on national origin, complaint's claim was best analyzed under the
disparate treatment framework. At the first step of the analysis, the
agency concluded that complainant did not establish a prima facie case of
national origin discrimination; and that although complainant is a member
of a protected class, he did not establish that a �similarly situated�
person was treated differently. The FAD determined that the surgeon
cited by complainant, Dr. W, was a fee-basis surgeon and therefore
not similarly situated to complainant. The agency further concluded
that complainant failed to show that the agency had taken an adverse
action against him. The agency specifically noted that productivity is
not a factor in credentialing, and that complainant had reduced his own
referrals. The FAD indicated that the agency had presented a legitimate,
non-discriminatory reason for assigning consults to Dr. W. According to
the agency, unassigned consults were given to Dr.W because he works with
residents and the RMO wanted to develop the educational reputation of
the VAMC. The agency determined that complainant, on the other hand,
did not frequently include residents in his surgeries. Moreover, the
agency determined that complainant did not offer evidence of pretext.
Accordingly, the FAD found no discrimination based on national origin.
On appeal, complainant contends that the agency's reason for assigning
consults to Dr. W, to increase the learning experience of residents,
is merely pretext for discrimination. Complainant argues that the Bay
Pines hospital does not have Accreditation Council for Graduate Medical
Education (ACGME) approval for a general surgical rotation through the
thoracic section.
In response, the agency states that complainant's claim is not supported
by the record, noting that there was �no change in the overall workloads
from 1994 though 1996.� Moreover, the agency reiterates its contention
that consults not already assigned were given to Dr. W because of his
teaching experience and willingness to include residents in his cases.
Harassment
Initially, we note that the agency failed to address complainant's
claim of harassment. The FAD summarily stated that because complainant
failed to present evidence establishing he was subjected to �denigrating
or insulting verbal or physical conduct because of national origin�,
the claim is simply one of disparate treatment. However, complainant
asserts that the RMO's failure to assign him thoracic consults created
a hostile work environment. Therefore, we find that the FAD failed to
provide a complete analysis of the harassment claim, and the Commission
will address it here.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior EEO
activity is unlawful, if it is sufficiently patterned or pervasive. See
Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing Mc Kinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March
8, 1994). In determining that a working environment is hostile, factors
to consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Systems, Inc. 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that �Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.� Harris, 510 U.S. at 22 (1993).
To establish a prima facie case of harassment, a complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct related to his membership in those classes;
(3) the harassment complained of was related to his membership in that
class; (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 Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. See Enforcement Guidance on Harris v. Forklift
Systems, Inc. EEOC Notice No. 915.002 (March 8, 1994).
Here, the record reflects that complainant belongs to a statutorily
protected class, employees of Hispanic national origin. However,
we find that the record does not support complainant's claim that the
purported harassment was based on his national origin. When complainant
was asked by the investigator whether he had heard of any reference
to his national origin, he admitted that he had not, but argued �but
what else could it be.� Furthermore, we find that complainant has not
shown that the alleged harassment affected a term or condition of his
employment or created a hostile work environment. Although complainant
contends that he has not been assigned consults, which prevent him
from maintaining his skills and current pay, the record indicates that
through October 1996 complainant performed approximately one third of
the thoracic operations. The record also reflects that any loss in
pay, due to alleged reductions in productivity, are too speculative.
The testimony of several witnesses indicate that possible changes to
the pay structure, to include productivity as one factor, are under
consideration but not currently utilized. The alleged harassment,
the failure by RMO to assign consults to complainant, is not severe or
pervasive enough to create an objectively hostile work environment.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case 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 Constr. 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 Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993).
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 United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to complainant's claims of discrimination, the agency
argued that the decision to give unassigned consults to Dr. W was based
on educational grounds. The Commission finds that the record supports the
agency's argument. According to RMO, education is an important aspect of
the Medical Center; and that Dr. W is a renowned teacher who has surgical
residents assistant when he is the attending surgeon. Complainant and
Dr. O, on the other hand, tend to assist each other instead of providing
residents with the learning experience. Moreover, the agency stated
that from July 1, 1996 though October 31, 1996, complainant, Dr. O,
and Dr. W each completely approximately the same amount of operations
(31%, 35% and 34% respectively). The record reflects that there are
two other sources for obtaining consults, the conference and direct
phone calls by physicians, in addition to the consult sheets sent to the
surgical office. Therefore, we find that the agency has articulated a
legitimate, nondiscriminatory reason for its action.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
On appeal, complainant argues that the hospital does not have the proper
accreditation for a general surgical rotation through the thoracic
section, and therefore the agency's educational reasons are unworthy of
belief. Upon a review of the record, we find that complainant has failed
to show pretext by a preponderance of the evidence. The record indicates
that Bay Pines is affiliated with the University of South Florida,
and part of the resident experience includes participation in thoracic
operations. Therefore, the agency's determination that complainant
failed to establish that he was discriminated against was correct.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 8, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.