01A23025
08-05-2003
Harjinder K. Virdee v. Department of Veterans Affairs
01A23025
August 5, 2003
.
Harjinder K. Virdee,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23025
Agency Nos. 200K-1404; 200K 1581; 200K-1780
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 for the
Commission's de novo review 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 Staff Psychiatrist at the agency's Veterans Administration
Medical Center, located in Fargo, North Dakota. Complainant sought EEO
counseling and subsequently filed a formal complaint on September 27,
2000 (Agency No. 200K-1404), alleging that the agency when created a
hostile work environment on the bases of race (East Indian) and color
(Brown) during the fall of 1998 to about June 22, 2000, when:
On or about January 29, 1999, as a result of complainant's reporting
the misappropriation of funds to the Chief of Staff (COS), a committee
conducted a review of the department, but recommendations about the
fraudulent timekeeping were not followed through and, instead, the review
committee made unsubstantiated allegations concerning complainant's
competence and ability to communicate;
From June 4, 1998, while complainant was appointed Acting Chief of
Psychiatry, she made repeated requests to management to fill vacant
positions within the department, which were rejected;
Complainant addressed workload concerns in writing in December 1998,
resulting in a review being conducted in February 1999, after which the
Center Director (CD) called complainant into his office and stated �I
want to check your head out;�
On February 26, 1999, the CD offered to help complainant with her
workload by stating that the Chaplain was well qualified to handle the
psychiatry department;
When the new Chief of Psychiatry (CP) started her employment in July
1999, she was provided the necessary support to run the department and
complainant is convinced that this is because CP is a White-American;
On May 20, 2000, the facility director wrote a letter to a patient
indicating that complainant had made several mistakes in the interview
and examination process, and complainant had been counseled in the
examination process;
On May 22, 2000, the network director wrote a letter to a member of the
House of Representatives indicating that complainant had made several
mistakes in the interview and examination process, and complainant had
been counseled in the examination process; and
Complainant received no notice of the letters until June 22, 2000, when
she received a copy of the patient's letter and management's response,
and had never received counseling concerning the patient's complaint.
Complainant sought EEO counseling again and subsequently filed a formal
complaint on January 24, 2001 (Agency No. 200K-1581), alleging that she
was discriminated against by the agency when it created a hostile work
environment in reprisal for prior protected EEO activity during the
period of October 2000 to about December 22, 2000, when:
On November 16, 2000, a Hearing Officer at the American Legion Department
of North Dakota wrote a derogatory letter and the CD responded negatively
regarding complainant's performance/assessments;
On December 1, 2000, a patient came to complainant's office and rudely
informed complainant that he wanted to have his records released, and
disliked the clinical assessment that resulted in the denial of his
claim, leaving complainant in fear for her life because of his behavior;
During a meeting on December 1, 2000, the Service Center Manager (SCM)
made negative comments about complainant's professionalism, stating
that complainant had poor bedside manners and was in the way of a
$120,000,000.00 budget when assessing compensation and pension claims;
A Veterans Service Officer (VSO) and the CP conspired with patients
by informing them about complainant's clinical assessments made from
September 2000 through October 2000;
On December 4, 2000, a patient wrote a threatening letter that was
sent from the Regional Office via mail that complainant believed to be
directed to her, causing her to fear for her life because the letter
contained a document with a picture of a gun drawn on it;
On December 6, 2000, the Chief of Police refused to meet with complainant
alone concerning the threatening letter from the patient; and
On December 6, 2000, complainant was accused of utilizing her
relationship with her husband, who works in Rehabilitation Service,
as a tool to dispute a patient's clinical assessment.
On October 13, 2000, VISN Director visited the Medical Center, and
complainant felt that the incidents cited above occurred as a result
of his visit.
Complainant sought EEO counseling again and subsequently filed a formal
complaint on June 28, 2001 (Agency No. 200K-1780), alleging that she
was discriminated against by the agency when it created a hostile work
environment in reprisal for prior protected EEO activity when:
On or about April 17, 2001, when complainant arrived at the Fargo Human
Resources Management Service for a meeting, the CP attempted to close
the door on complainant and made disparaging and disrespectful remarks
to her.
At the conclusion of the investigations, complainant was informed of
her 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 complainant failed to establish
that all of the incidents taken together established a prima facie case
of harassment. In so finding, the FAD noted that complainant failed to
demonstrate that these incidents were sufficiently severe or pervasive
to establish a hostile work environment, or were products of the agency's
animus towards complainant's race, color or prior EEO activity. The FAD
proceeded to analyze each claim under a theory of disparate treatment.
Ultimately, the FAD found that complainant failed to establish that
the agency's articulated legitimate nondiscriminatory reasons for its
actions were pretext for discrimination.
On appeal, complainant contends that the agency erred in finding no
discrimination and requests that the FAD be reversed. Specifically,
complainant argues that there are many instances where pretext exists.
The agency requests that we affirm its FAD.
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. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). To establish
a claim of hostile work environment/harassment based on race, color,
or in reprisal for prior EEO activity, a complainant must show that: (1)
she is a member of a statutorily protected class; (2) she was subjected
to harassment in the form of 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. Henderson v. City of Dundee,
682 F.2d 897, 903-4 (11th Cir. 1982). Based on the evidence of record,
we find that complainant has failed to establish a claim of harassment.
In so finding, we note that there is no evidence in the record to support
that the complained-of harassment was based on complainant's race,
color or in reprisal for her prior EEO activity.
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:
August 5, 2003
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations