0120111483
01-24-2012
Abdel-Fatah Massoud, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Abdel-Fatah Massoud,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111483
Agency No. 200H05402010104081
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision (FAD) dated January 3, 2011, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Psychiatrist at the Agency’s Medical Center facility in
Clarksburg, Virginia. On October 13, 2010, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of national origin (Egyptian), religion (Muslim), age (56
years at the time of the incidents), and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record when:
1. In May 2010, Complainant learned that a new psychiatrist would be
allowed to start a Suboxone clinic and take notes for the substance
abuse groups each month;
2. On June 21, 2010 half of the patients assigned to Complainant's panel
were reassigned to the new substance abuse psychiatrist;
3. On June 22, 2010, Complainant was informed he could not prescribe
methadone in his treatments;
4. In August 2010, Complainant's supervisor treated Complainant in an
unprofessional manner regarding the issue of a course;
5. Complainant learned that the August 2010 Commission on Accreditation
of Rehabilitation Facilities (CARF) visit was postponed for six months;
6. On September 1, 2010, Complainant was asked to re-sign a paid
performance document for the previous period and date it 9/30/09 in
order for his pay to be processed;
7. On September 9, 2010, Complainant discovered that his November 12
through December 3, 2010 request for leave had been canceled;
8. In September 10 and 20, 2010, Complainant saw that his leave balances
were incorrect and some of his accrued leave had not been recorded;
9. In October, 2010, Complainant was informed that an investigation
conducted into an allegation he had made concerning having been
threatened by a patient found that there had been no threat as alleged
by Complainant; and
10. From February 2010 to present, Complainant has been excluded from
various committees, meetings, conferences and hiring panels.
The Agency dismissed the claims for failure to state a claim, finding
that the alleged actions were not sufficiently severe or pervasive to
constitute harassment. The Agency further found that such actions would
not have a chilling effect nor would they dissuade a reasonable person
from raising or supporting a charge of discrimination.
CONTENTIONS ON APPEAL
On appeal, the Agency requests that we affirm its FAD. Complainant
disputes the Agency’s finding that he failed to state a claim.
ANALYSIS AND FINDINGS
Following a review of the record, we find that with regard to claims
4, 5, 6, and 9, we agree with the Agency that Complainant failed to
state a claim. Complainant has not shown how such actions rendered him
aggrieved. The Commission’s federal sector case precedent has long
defined an “aggrieved employee” as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Furthermore, with regard
to his allegations of reprisal, we note that the Commission interprets
the statutory retaliation clauses “to prohibit any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.”
EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20,
1998)(Compliance Manual). The Commission finds that Complainant has not
provided sufficient detail to explain how the incidents raised in claims
4, 5, 6, and 9 resulted in either a harm or loss with respect to a term,
condition or privilege of employment, or that such incidents are the
type of incidents that are reasonably likely to deter Complainant or
others from engaging in protected EEO activity.
The Complainant further finds, however, that with regard to claims 1,
2, 3, 7, 8 and 10, Complainant has stated valid claims of disparate
treatment and/or reprisal. With regard to claims 1, 2, 3, and 10,
Complainant is essentially alleging that management is interfering with
his work duties and that certain duties are being taken away from him and
given to a colleague. Contrary to the Agency’s conclusion in its FAD,
we find that having work duties taken away constitutes the type of action
that is “reasonably likely to deter Complainant or others from engaging
in protected activity,” see Compliance Manual, and hence such actions
form the grounds of a valid complaint of reprisal. With regard to claims
7 and 8, Complainant is alleging that his leave request was cancelled and
that he lost leave that he had accrued. Such allegations state valid
claims of disparate treatment because having leave denied and accrued
leave taken away both result in harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy, thus
rendering Complainant aggrieved. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). In addition, the denial
of a leave request and the loss of accrued leave similarly constitute
the type of actions that are reasonably likely to deter Complainant or
others from engaging in protected activity. See Compliance Manual.
In its FAD, the Agency indicates that Complainant’s leave request was
ultimately granted, and further indicates that the reason Complainant
was not allowed to prescribe methadone is because the facility does not
have a methadone clinic. On appeal, Complainant alleges that his leave
was cancelled “to accuse me of AWOL and have [sic] a reason to fire
me.” The Commission finds that the Agency’s explanations address
the merits of Complainant’s complaints without a proper investigation
as required by the regulations. Such explanations are irrelevant to
the procedural issue of whether Complainant has stated a justiciable
claim under Title VII. See Osborne v. Dep’t of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC
Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv.,
EEOC Request No. 05910642 (Aug. 15, 1991).
For the above reasons, we AFFIRM the FAD in part and REVERSE in part,
and we REMAND claims 1, 2, 3, 7, 8, and 10 to the Agency for further
processing.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 24, 2012
__________________
Date
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0120111483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111483