01A15383
02-26-2003
Hawey Wells, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hawey Wells, Jr. v. Department of Veterans Affairs
01A15383
February 26, 2003
.
Hawey Wells, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A15383
Agency No. 99-5348
Hearing No. 170-A1-8210X
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Domiciliary Physician at the agency's VA Medical Center in
Martinsburg, West Virginia facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on November 5, 1999, alleging
that he was discriminated against and harassed on the bases of sex (male)
and age (D.O.B: 2/26/36) when:
(1) complainant's new supervisor informed him that he would no longer be
supervised by a physician, but by a psychologist, and that complainant
would not have another psychiatrist to assist him on the detoxification
ward, after care medical clinic, residential treatment unit, which has
dual diagnosis patients;
due to the inexperience of complainant's psychologist- supervisor
in scheduling and providing backup care, complainant was faced with
the choice of working late to provide adequate care or leaving after
eight hours;
every day complainant was required to complete an hour for dictation
of charts and an hour for workload recording, although complainant's
schedule does not provide time from both, nor is he able to adequately
review the work of the Physician Assistants;
some of complainant's duties and responsibilities have been reduced
below the level that justify his expense and salary; and
because the other psychiatrist was removed, complainant was required to
provide care for all the patients on the above units, which he felt
constituted intolerable working conditions and caused him to make
several trips each day between the units to care for patients.
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
initially requested a hearing before an EEOC Administrative Judge (AJ).
The record shows that by Order dated March 28, 2001, the AJ scheduled
a hearing and directed the parties to submit prehearing statements in
preparation for the prehearing conference scheduled for June 1, 2001.
Complainant was notified that if he failed to submit a prehearing
statement on or before May 20, 2001, the AJ might impose sanctions
including cancellation of the hearing and dismissal of the complaint.
The record shows that complainant failed to submit a prehearing statement.
On May 31, 2001, the AJ issued an Order to Show Cause directing
complainant to show cause why he did not submit a prehearing statement.
On June 12, 2001, complainant submitted a response, in which he stated
that he did not receive the Order of March 28, 2001, because his wife had
placed it in his files while he was at the hospital between April 2 to
April 5, 2001. Complainant alleged that he did not discover the Order
until May 31, 2001. On June 27, 2001, the AJ issued a Sanction Order,
and concluded that complainant had not shown good cause why he failed
to abide by the order of an AJ.
The AJ subsequently viewed complainant's conduct (failure to show good
cause for why he did not submit a prehearing statement) as withdrawal
of his request for a hearing. Accordingly, the AJ remanded the
complaint to the agency for an immediate final agency decision based
on the investigative record. The agency issued a decision finding
no discrimination.
In its FAD, the agency found that complainant failed to establish a prima
facie case of age and/or sex discrimination. Specifically, the agency
found that there are no comparable employees; there are only three
non-supervisory physicians in complainant's unit and all are males.
The agency also found that there is no indication in the record that
complainant received different treatment from similarly situated persons,
either substantially younger within his age group, or outside of his
protected group.
The agency further found that complainant's allegations were not
sufficiently severe or pervasive to constitute an objectively hostile
work environment. The agency concluded that the alleged discriminatory
harassment consisted of events that were not inherently egregious or
patently offensive. The agency concluded that the conduct was totally
within the realm of normal workplace occurrences. Specifically, the
agency found that the discriminatory allegations did not occur, or that
they did not occur under the harassment styled circumstances claimed
by complainant in this case. The agency also found that there is no
evidence of any use of obscene language, sexual slurs, or denigrating
remarks concerning complainant's sex and age.
Finally, the agency concluded that management offered legitimate,
nondiscriminatory reasons for its actions. As to claims (1) and (5), the
agency found that there was a reorganization within Mental Health services
and while Dr. RH, a psychiatrist, was removed from complainant's direct
administrative supervisory chain, Dr. RH continued to perform related
duties as complainant's clinical supervisor. The agency concluded
that while one therapist retired, that loss of one psychiatrist had
no impact on complainant's caseload and work. The agency also found
that complainant's caseload was not overwhelming and most, if not all,
of his caseload problems were related to his scheduling deficiencies.
As to claims (2) and (3), the agency found that complainant was the
only physician at the Medical Center not on call, and all health care
providers in Mental Health services had to work late on some occasions.
The agency also found that complainant's caseload was not so heavy that
it required him to work late. The agency concluded that if complainant
worked late, it was his own fault, due to his poor scheduling habits and
choices that he made. As to claim (4), the agency found that management
denied that complainant's duties and responsibilities were reduced;
rather, complainant wanted to work a half-day each week in the Pathology
Lab, which was not contributing to his salary, while he complained about
scheduling problems, and management wanted him to focus on his duties
in the Substance Abuse and Detox clinics which paid his salary.
On appeal, complainant contends, among other things, that he was denied
the opportunity to have his witnesses heard once at the investigation
stage, and also when the AJ refused to allow a hearing on the claims.
Complainant also contends that he did not waive his right for a hearing.
Complainant further contends that he had a good cause for failing to
respond to the AJ's order, namely, he was an inpatient at Jefferson
Memorial Hospital in Charles Town, West Virginia, and that he received
the Order on May 31, 2001.
Complainant also contends that the agency harassed him when he was demoted
from �Staff Psychiatrist� to �Domiciliary Physician� without cause or
notice even though his new supervisor had no experience or training
in Acute Medical Detoxification or Addiction Medicine of any kind.
Complainant contends that the agency ignores that his age and arthritis
made it impossible for him to walk back and forth between widely separated
buildings and up and down the steps at least four round trips each day,
while admitting, treating and discharging approximately 1000 acute
detoxification patients per year, 250 rehabilitation patients per year,
in addition to the aftercare and dual diagnosis clinics.
ANALYSIS AND FINDINGS
AJ's Sanction
An AJ has the authority to sanction a party for failure, without good
cause shown, to fully comply with an order. See 29 C.F.R. 1614.109(f)(3).
Additional guidance can be found in EEO MD-110, 7-9 and Rules 11 and 37
of the Federal Rules of Civil Procedure.
We find that the evidence of the record supports the AJ's conclusion
that complainant failed to show good cause why he failed to abide by
the order of the AJ. An AJ may dismiss a complaint as a sanction for
failure to comply with an order of an AJ. 29 C.F.R. 1614.109(f)(3).
In the instant matter, however, it does not appear that the AJ dismissed
the entire complaint; rather, it appears that the AJ simply dismissed
the hearing request and remanded the complaint to the agency for a
final decision. The record shows that complainant was hospitalized from
April 2 to April 5, 2001, and that complainant had until May 20, 2001,
to respond to the AJ order. The record also reveals that the Order was
received at complainant's address on or about March 28, 2001, and that
his wife placed the Order inside a file. The Commission finds that the
AJ's dismissal of the hearing request was an appropriate sanction.
Disparate Treatment
Complainant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). A complainant 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
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We agree with the agency's conclusion that complainant failed to establish
a prima facie case of sex and/or age discrimination. In particular,
the agency correctly found that complainant offered no evidence that he
was treated less favorably than similarly situated employees outside of
his protected group. We also find that complainant failed to present any
other evidence that the agency's actions were motivated by discriminatory
animus towards complainant's age and/or sex.
Harassment
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 (Aug. 14,
1998) (citation omitted). To establish a prima facie case of hostile
environment harassment, a complainant must show that: (1) he belongs to
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.
Regarding complainant's claim of harassment, we find that complainant
failed to establish a prima facie case of hostile environment harassment.
We concluded that even if complainant's allegations are true, they are
not sufficiently severe or pervasive to alter complainant's conditions
of employment.
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 agency's
final decision finding no discrimination.
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
February 26, 2003
__________________
Date