01A14661
12-12-2002
Robert J. Packer, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert J. Packer v. Department of Veterans Affairs
01A14661
December 12, 2002
.
Robert J. Packer,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14661
Agency No. 200G970
DECISION
Robert J. Packer (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.
The record reveals that during the relevant time, complainant was
employed as a Supervisory File Clerk at the agency's West Roxbury
Medical Center in Boston, Massachusetts. Complainant sought EEO
counseling and subsequently filed a formal complaint on January 11,
2001, alleging that he was discriminated against on the basis of sex
(male) when he was subjected to harassment. Complainant described the
following incidents in support of his claim:
(1) the Associate Hospital Director reassigned him to a Supply Technician
position in Acquisitions and Material Management Service from his
Supervisor, Medical Records position in Medical Administration Service
(MAS) on March 23, 2000;
the Chief Fiscal Officer did not authorize payment for travel during
his detail which began on March 6, 2000, and concluded on October 23,
2000, despite they payment being previously approved by the Chief,
Acquisition & Material Management;
the Associate Hospital Director issued him a one-day suspension on
September 5, 2000, which he served on October 13, 2000;
on or about February 25, 2000, the Chief of MAS, in front of another
employee, yelled at him regarding loose filing, even though another
employee had been detailed to the file room to deal with the filing;
the Chief of MAS did not give him a copy of a File Room Assessment Report
issued by the Assistant Chief of Health Information Management Services
(HIMS) on June 18, 1999, until February 2000, and complainant was not
given the opportunity to provide input;
on or about January 24, 2000, complainant raised his concern of
harassment by another employee who had requested supplies from him to
the Chief of MAS, and she did not respond to his concerns;
on or about August 17, 1999, the Chief of MAS did not address
complainant's concerns that the Chief of HIMS called the West Roxbury
staff �stupid and incompetent;�
the Chief of MAS did not select him for the Supervisory Clerk position
from Vacancy Announcement Nos. 99-57 and 99-62 (re-announced) by notice
dated August 16, 1999.
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
requested that the agency issue a final decision.
In its FAD, the agency first concluded that the events described by
complainant occurred. In addressing his claim of harassment, however,
the agency found that although communications and relations between
complainant and his managers were far from ideal and that fault for this
fact was shared among all involved, complainant failed to establish that
there was a connection between the events he described and his gender.
The agency also concluded that the conduct described was not sufficiently
severe or pervasive to constitute an objectively hostile work environment.
In so finding, the agency noted that complainant failed to show that
he endured unwelcome personal slurs or other verbal or physical conduct
sufficient to create a hostile environment. The agency further noted that
the events were totally within the realm of normal workplace occurrences.
The agency then applied a disparate treatment analysis to complainant's
allegations and determined that he failed to establish a prima facie
case of sex discrimination in regard to every issue but for Issue 8.
The agency found that there was no evidence that similarly situated female
employees were treated more favorably than complainant. The agency
further concluded that complainant failed to establish any causal
connection between his gender and the actions which took place.
Despite its conclusion that complainant failed to establish a prima
facie case with regard to Issues 1-7, the agency set forth management's
legitimate non-discriminatory explanation for each issue. For example,
the agency noted that the Associate Medical Center Director (AMCD)
testified that complainant was reassigned and suspended due to an
Administrative Board Investigation (ABI), which established that he had
engaged in inappropriate conduct. As for complainant's claims that he
was denied travel expenses, management testified that employees are
entitled to reimbursement of travel expenses only when traveling to
somewhere other than their duty station. When complainant was detailed
to the Jamaica Plain (JP) facility, his duty station was changed to that
facility and he was therefore not entitled to travel expenses.
In regard to Issue 8, the agency concluded that although complainant
established a prima facie case, he failed to prove that the
agency's legitimate non-discriminatory explanation was a pretext
for discrimination. The agency noted that the selected official, the
Chief of MAS (CMAS) stated that she chose the selectee (S1) because she
felt that S1 had superior qualifications. CMAS specifically cited S1's
experience in ambulatory care, a responsibility that the vacant position
included. CMAS also noted that S1 had been instrumental in improving
the timeliness of the Compensation and Pension program. In finding
that complainant failed to establish that this explanation was a pretext
for discrimination, the agency addressed complainant's reliance on the
fact that the first announcement was rescinded and complainant had to
reapply, noting that S1 was also told to reapply. The agency also cited
testimony from another witness who stated that CMAS and complainant had
basic differences about how to manage employees. The agency further
stated that the record established that there was friction between CMAS
and complainant and that complainant himself acknowledged that he had
problems in the areas of interpersonal and supervisory style. The agency
concluded that complainant failed to establish by a preponderance of
the evidence that the non-selection was motivated by his sex.
On appeal, complainant essentially reiterates contentions he raised
throughout the investigation. He also notes that the agency acknowledged
that all the events he described in his complaint occurred. He concludes
that he has established that he was �harassed, humiliated, and degraded.�
The agency requests that we affirm its FAD.
Turning first to complainant's claim that the incidents he described
created a hostile work environment on the basis of sex, we find that
although it is clear that complainant's relationship with those in his
supervisory chain was troubled, there is no evidence to suggest that his
sex motivated any of the incidents he described. Although complainant
alleges that CMAS and other managerial officials treated females more
favorably than he, complainant provides no competent evidence in support
of this claim. Indeed, complainant himself stated throughout the
investigative record that neither he nor his staff, many of whom were
females, were treated with respect by the supervisors once employees
from the JP facility began working with them.
Furthermore, the record establishes that the agency was in fact motivated
by complainant's behavior and performance in taking the steps that it
took, rather than his gender. For example, complainant was reassigned
and suspended after the results of the ABI indicated that he had
used inappropriate language in referring to his supervisors and had
used abusive language towards employees working under him. Although
complainant contends that the ABI did not follow proper procedures,
testimony gathered during the investigation of his EEO complaint confirms
that complainant had, in fact, used foul language in referring to his
female supervisors and had verbally abused employees who worked for him.
Moreover, other witnesses testified that when JP employees were sent
to help the West Roxbury facility with its filing backup, they learned
that complainant had much more loose filing than he had indicated and
reported this to CMAS. These witnesses believed that complainant was
reassigned because the supervisors learned that he was not doing his job.
Complainant contends that those who testified about his use of foul
language and performance problems were not telling the truth and alleges
that his supervisors wanted his job to go to employees from Jamaica
Plain and therefore urged JP employees to create a case against him.
Even assuming this is the case, however, this does nothing to establish
that the actions taken against him were due to his gender, rather than
his use of foul language, harsh supervisory style and failure to perform
adequately.
Complainant alleges that the fact that a supervisor used the terms
�stupid and incompetent� to refer to the West Roxbury staff and CMAS
did not respond to his concerns about this matter establishes that he
was subjected to gender discrimination. Assuming these terms were
used, even complainant acknowledges that they were directed at the
entire West Roxbury staff, many of whom were female. To the extent
that complainant intended to use this incident as evidence that he
was treated more harshly than a similarly situated female when he was
accused of being abusive towards his staff, we note that at least two
witnesses attested to complainant's use of repeated use of foul language
to describe his supervisors and abusive conduct towards subordinates,
whereas the behavior in which complainant alleges the female supervisor
engaged, while inappropriate, only occurred once or twice and did not
include the use of foul language.
In sum, although many of the incidents described by complainant
establish that he had a poor working relationship with his supervisors,
he provided insufficient evidence to establish that the agency's actions
were motivated by his gender, rather than his behavior, performance,
or the fact that the office in which he worked was undergoing changes in
personnel likely to cause stress in any office environment. Complainant
himself stated throughout the investigation that CMAS and other managers
failed to support him because they wanted to replace him, and all West
Roxbury supervisors, with supervisors from JP. The record establishes
that at least two of the JP employees sent to remedy the loose filing
backup at West Roxbury were males and that one of these male employees
(JP1) felt complainant was uncooperative because complainant believed
JP1 was after his job. Complainant also noted that he was, at one
point, receiving complimentary letters from CMAS and that suddenly,
after the ABI, she began treating him harshly and unfairly. Again, even
assuming the truth of this allegation, it does not support complainant's
contention that the agency's actions were based on his sex, but rather
indicates that CMAS suspended and reassigned him for the very reason she
articulated--in response to the results of the ABI which indicated that
he used foul and inappropriate language in reference to her and others
and was abusive towards subordinates. Accordingly, as complainant did
not provide sufficient evidence to prove that the actions of which he
complained were based on his sex, we find that he failed to establish
that he was subjected to sex-based harassment in violation of Title VII.
Furthermore, while complainant established a prima facie case of sex
discrimination in regard to his non-selection, he failed to prove that,
more likely than not, his sex motivated this non-selection. Complainant
failed to provide any evidence to suggest that his qualifications
for the position at issue were observably superior to those of S1.
Moreover, in his affidavit complainant testified that he included this
issue in his complaint because around the time of the selection he had
a less than pleasant discussion with CMAS about a subordinate employee.
This testimony implies that even complainant believed that it was his
poor relationship with CMAS, as discussed above, that motivated his
non-selection, rather than his gender. Although complainant reiterated
that CMAS did not select him because she disliked him due to his sex,
he failed to establish this claim by a preponderance of the evidence.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 12, 2002
Date