01a22838
05-29-2003
Jerome D. Lopopolo, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jerome D. Lopopolo v. Department of Veterans Affairs
01A22838
05-29-03
.
Jerome D. Lopopolo,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22838
Agency No. 200R-1579
Hearing No. 160-A1-8465X
DECISION
Jerome D. Lopopolo (hereinafter referred to as complainant) filed an
appeal from the April 10, 2002, final decision of the Department of
Veterans Affairs (hereinafter referred to as the agency) concerning a
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.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant claimed discrimination based on race (white) when he was
harassed and transferred to another unit following an allegation of
verbal abuse towards a patient. Complainant worked as a medical clerk
in the EYE/ENT clinic. In January 2000, a patient complained about him,
and he was transferred to the same job in another unit. The agency
showed that other employees of different races (four black and one white
employees) were transferred as a result of complaints from patients,
and complainant did not receive discipline. Following an investigation,
an EEOC Administrative Judge (AJ) issued a decision without a hearing,
finding that complainant did not establish a prima facie case and
was not harassed. The agency agreed to implement this decision, and
complainant has filed the instant appeal.
Complainant has stated a claim of disparate treatment, and such claims
are examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Where the agency
has articulated a legitimate, nondiscriminatory reason for the action
at issue, the factual inquiry can proceed directly to the final step of
the McDonnell Douglas analysis, that is, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were not true and were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Here,
we find that the agency provided a legitimate, nondiscriminatory reason
for transferring complainant to another unit. We note, in addition, that
complainant did not receive any discipline as a result of the patient's
complaint and that complainant did not demonstrate that the agency's
reason for its action was not true and based on prohibited considerations
of race. The agency showed that it had transferred employees of races
other than complainant's because of complaints from patients. We find,
therefore, that the agency did not discriminate against complainant
based on race.
Complainant has also claimed that he was subjected to harassment based
on race. It is well-settled that harassment based on an individual's
race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986); see also Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994). With regard to complainant's
claims, after review of the record before us, we find that complainant
has not established a claim of harassment. Specifically, he did not
demonstrate that the agency's conduct was related to his race, based on
discriminatory reasons, or sufficiently severe or pervasive to affect his
work environment. We find therefore that complainant was not subjected
to a hostile work environment.
On appeal, complainant contended that his rights were violated, because
the agency allowed an outside entity to conduct the investigation
of his complaint. EEOC regulations require the agency to conduct an
investigation addressing the claims raised but does not limit or restrain
the agency from employing any outside organizations. See 29 C.F.R. �
1614.108 et seq. We do not find that the agency's investigation is
inconsistent with our regulations, and, complainant has not shown that
he was harmed or injured thereby.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____05-29-03______________
Date