0120080641
05-09-2008
Jose M. Bejar, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Jose M. Bejar,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080641
Agency No. 200306772006100603
DECISION
Complainant filed an appeal from the agency's October 29, 2007, final
decision 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission affirms the
agency's final decision.
At the time of the events at issue, complainant was employed by the agency
as a physician at its Colmery-O'Neil VA Medical Center in Topeka, Kansas.
On January 18, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Hispanic), national
origin (Ecuadorian), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964, raising 21 claims of
discrimination/harassment. The agency dismissed 20 of the claims in a
decision dated October 29, 2007 for failure to state a claim.1 Complainant
amended his complaint with three additional claims, which were accepted.
Thus, the four claims addressed in the agency's final decision were:
1. His clinical privileges were allegedly restricted on or about
October 31, 2006;
2. He was informed on May 2, 2007, that he needed to find another
physician to support his application for clinical privileges within 24
hours;
3. He was allegedly instructed on May 18, 2007, to take care of
a critically ill patient who had reported to the emergency room when
complainant already had a clinic scheduled;
4. He was allegedly pressured by a supervisor on or about May 21,
2007, concerning the patient from May 18, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
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 EEOC Management
Directive 110, 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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: 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, 510 U.S. at 23. Consistent with the
Commission's policy and practice of determining whether a complainant's
harassment claims are sufficient to state a hostile or abusive work
environment claim, the Commission has repeatedly found that claims of a
few isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and
Human Services, EEOC Request No. 05940481 (February 16, 1995).
With regard to claim 1, the record indicates that in October 2006,
complainant received a letter from the Chair of the Professional Standards
Board ("PSB Chair") designating the "settings" where complainant had
"approved clinical privileges." These settings were designated as
"Inpatient Medical Unit/ICU" and "Outpatients Clinics." In November,
complainant sent a letter to the Medical Center Director asking that he
also be approved to work in the emergency room, the inpatient psychiatric
unit and the long-term care units. In a second memorandum dated November
27, 2006, from the PSB Chair, complainant's request was granted and he was
granted privileges in these additional settings. The PSB Chair explained
during the investigation into complainant's EEO complaint that 2006 was
the first year that the credentialing process involved physical location
("settings") for the exercise of privileges. The PSB Chair stated that
the initial settings designation was sent to complainant for his review
and correction. When complainant requested additional settings, they
were approved.
With regard to claim 2, the record indicates that an administrative
assistant reviewed complainant's credentialing file and believed one
required letter of reference was missing. Therefore, the administrative
assistant emailed complainant that he needed one more reference to keep
his credentials and it was needed quickly. Complainant secured another
reference and received his privileges. Shortly thereafter, he received
an apology explaining that somehow a reference he submitted earlier had
inadvertently not been printed and placed in his file.
As to the situation with the emergency patient (claims 3 and 4),
the Administrative Officer who instructed complainant to see the
patient explained that he did so because the other doctor on duty had
already taken on two new patients, and he did not believe complainant
had a clinic until later in the day. The record further reveals that
complainant did not have to see the patient and the patient was assigned
to another doctor. Finally, complainant alleged that, several days later,
when his supervisor talked to him about the situation with the patient,
the supervisor was "very tense" and stared at the consultation sheet
for an unusually long time.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has failed to show that the agency's reasons for its actions
were a pretext for discrimination or reprisal. Further, to the extent
that complainant raised claims of harassment, the incidents complained
of, even considered together and assumed to be true, do not rise to the
level of a discriminatory hostile work environment.
Accordingly the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 9, 2008
__________________
Date
1 Complainant does not challenge the dismissal of the 20 claims. Thus,
we do not address them in this decision.
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0120080641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080641