01A10309
07-29-2002
Kenneth Stohlman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kenneth Stohlman v. Department of Veterans Affairs
01A10309
July 29, 2002
.
Kenneth Stohlman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10309
Agency No. 993209
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
Complainant, a Registered Nurse at the agency's Medical Center in
Lexington, Kentucky, after seeking EEO counseling, filed a formal EEO
complaint alleging that he was discriminated against on the basis of
his sex (male). The series of events giving rise to these allegations
can be summarized as follows:
complainant's supervisor accused complainant of creating a hostile work
environment without having conducted an investigation of the truth of
that accusation;
complainant was counseled for having failed to clean up after a �blood
spill incident;�
complainant's request for copies of documents relating to him, including
a copy of a report concerning the counseling he had received, was denied;
complainant was given a �counseling statement� for being disrespectful
to his supervisor;
a report was made by a co-worker to the agency's police accusing
complainant of threatening that co-worker;
an adverse �Report of Contact� was written about complainant as a result
of a complaint by a co-worker to a supervisor;
complainant's supervisor rudely interrupted a conversation complainant
was having with a student nurse; and
complainant's supervisor refused to explained to him how to file a
grievance.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie of sex-based harassment or disparate treatment. It also
found with respect to disparate treatment that the agency had articulated
a legitimate, nondiscriminatory reason for its actions which complainant
had failed to prove to be a pretext for discrimination. From the agency's
FAD complainant brings the instant appeal.
Harassment
The gravamen of complainant's complaint seems to be that the incidents
summarized above, when considered together, constituted a pattern of
hostile environment harassment to which he was subjected because of his
sex. To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) he belongs to the relevant statutorily
protected class; (2) he was subjected to unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on the statutorily protected 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
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
Based on our review of the record, we find that complainant has failed to
show that he was subjected to the actions complained about here because
of his sex and, therefore, that he has failed to establish a prima facie
case of sex-based harassment. There is nothing about the nature of the
actions that would suggest they were directed against complainant because
of his sex. The actions themselves, e.g., reprimanding complainant
because of his allegedly disrespectful behavior, bear no relationship
to complainant's sex. Nor is there any evidence, such as derogatory
comments about male nurses or men generally, that his supervisor was
motivated to take the complained of actions because of complainant's sex.
Disparate Treatment
Complainant appears to be contending that he was subjected to disparate
treatment discrimination on the basis of his sex when he counseled
following the �blood spill incident� because he had failed adequately to
clean up a patient's blood that had fallen to the floor in an area of the
hospital for which complainant had responsibility. Complainant avers
generally that female nurses who were involved in similar incidents
were not disciplined and that he was subjected to being counseled only
because of his sex.
Based on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its
progeny, the Commission agrees with the agency that complainant failed to
establish a prima facie case of sex discrimination. In order to establish
a prima facie case of disparate treatment, complainant must establish
that (1) he is a member of a protected class; (2) he was subjected to
adverse treatment; and (3) a similarly situated employee outside his
protected class was treated more favorably, or other evidence exists
to permit an inference of disparate treatment if otherwise unexplained.
Here complainant has failed to satisfy the third prong of the McDonnel
Douglas formula. Complainant has not identified any particular similarly
situated woman who was treated more favorably with respect to the agency
policy on blood spills. Nor has complainant adduced any other evidence
that would support an inference of discrimination
Failure to Investigate
Complainant also argues that the agency's investigation of his complaint
was inadequate because it did not interview any of the persons he
identified as witnesses. Complainant's position is not well taken.
As the agency pointed out, one of those potential witnesses was not
interviewed because she is not an agency employee and could not be
compelled to cooperate with the investigator. With respect to the
balance of the potential witnesses we are unable to evaluate the merits
of complainant's claim because he has provided no information about what
those individuals might have said in support of his complaint had they
been interviewed.
For the foregoing reasons, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 29, 2002
__________________
Date