0120114150
02-09-2012
Kulvinder Boparai, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kulvinder Boparai,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114150
Agency No. 200P06912011103428
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 3, 2011, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Primary Care Physician at the Agency’s Ambulatory Care Center
facility in Bakersfield, California. On July 1, 2011, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination
on the bases of race (East Indian), sex (male), religion (Sikh), and
reprisal for prior protected EEO activity under an EEO statute that was
unspecified in the record when he was subjected to harassment when the
following occurred:
1. On March 8, 2011, the Site Manager (SM), got into a verbal altercation
with Complainant regarding patient complaints in which she raised her
voice, yelled at, and stared/smirked at Complainant for a long time
during a staff meeting and continued doing so despite Complainant telling
her that the conduct was intimidating and hostile, and subsequently,
management failed to take any action against her;
2. On May 4, 2011, upon reading documents obtained through a discovery
request on a prior EEO complaint, Complainant became aware that, since
approximately 2006, SM and other employees had made repeated false
allegations against Complainant and portrayed him in a negative manner,
and that management had planned to take disciplinary action against him
based on those allegations, thus showing that management conspired with
these individuals to retaliate against Complaint by creating a hostile
work environment;
3. On May 4, 2011, upon reading documents obtained through a discovery
request on a prior EEO complaint, Complainant learned that SM had been
unilaterally making decisions to appoint physicians for additional
responsibilities without giving everyone the opportunity to participate,
and specifically, that Complainant and others who had filed EEO complaints
against her were excluded from consideration when management was selecting
physicians to run the Tele Diabetes, Tele ID, and proposed Tele PM&R
TB clinics.
The Agency dismissed the claims for failure to state a claim, finding
that the incident described in (1) was insufficiently severe to state
a claim of harassment, and that the incidents described in (2) and (3)
had been raised in a previous complaint.
CONTENTIONS ON APPEAL
Complainant argues on appeal that the harassment caused him emotional
injury. Complainant further argues that the incidents raised by (2)
and (3) should be investigated in the instant complaint because the
EEOC Administrative Judge currently handling his pending claims refused
to address them and told Complainant to raise them before the Agency.
Complainant next argues that the Agency improperly analyzed incident
(3) by failing to address the appropriate legal standard for reprisal
claims, and that the Agency did not analyze the claim under a disparate
treatment theory. The Agency did not submit a brief on appeal.
ANALYSIS AND FINDINGS
With regard to the incidents raised by allegations (2) and (3), the Agency
found that such incidents had been raised in a prior EEO complaint,
under Agency No. 200P-0691-2011100441. A review of that complaint
however, does not fully support the Agency’s argument. The earlier
complaint does include a claim whereby Complainant alleges that “From
September 2010 to present, supervisor TY solicited complaints against
the Complainant.” We note, however, that in the instant complaint,
Complainant is alleging that “since 2006 SM and other employees made
false allegations against Complainant.” Thus in the instant complaint,
Complainant is addressing actions that pre-date the prior complaint.
Furthermore it is not clear that TY (who is not the same management
official as SM) allegedly soliciting complaints against Complainant
describes the same incidents as SM and other employees making false
accusations against Complainant. Finally, a review of the earlier
complaint does not indicate that it addressed incident (3).
We further find, however, that Complainant has not provided any detail
regarding when he was allegedly excluded from consideration for positions
running the Tele Diabetes, Tele ID, and Tele PM&R TB clinics, nor has
he indicated whether he applied for such positions or was qualified for
such positions. We therefore find that (3) fails to state a claim of
either disparate treatment or reprisal.
In considering whether any of the remaining incidents listed, whether
individually or collectively, constitute harassment, the Commission
notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the complainant’s employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
he belongs to a 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).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. § 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.” The Court noted that such conduct “must
be both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive, and
. . . that the victim in fact did perceive to be so.” Id. See also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001).
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to show that he was subjected
to unwelcome verbal or physical conduct involving his protected classes,
that the harassment complained of was based on his statutorily protected
classes, and that the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson,
682 F.2d 897). While Complainant argues that he incurred emotional trauma
from the incidents, we note that the Commission has long held that where
an allegation fails to render an individual aggrieved, the complaint is
not converted into a cognizable claim merely because complainant alleges
physical and/or emotional injury. See Larotonda v. United States Postal
Service, EEOC Appeal No. 01933846 (March 11, 1994).
Finally, we find that Complainant has not shown he suffered harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Accordingly, the agency's final
decision dismissing complainant's complaint is affirmed.
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 (S0610)
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 (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
February 9, 2012
__________________
Date
2
0120114150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114150