MEMORANDUM OF DECISION1
Plaintiff Nikhil Pathak is a physician and the director of therenal dialysis unit ("RDU") at the Veterans AdministrationMedical and Regional Office Center at Togus, Maine ("theCenter"). On December 19, 1995, Plaintiff filed a "Complaint forReview of Administrative Action," that challenges the CenterDirector's decision to impose on him a seven-calendar-daysuspension without pay for sexually harassing Kathleen Lyons,head nurse of the renal dialysis unit, and also challenges thedecision of the Department of Veterans Affairs grievance examinerand its Regional Director to approve the Director's determinationand deny Plaintiff relief pursuant to his formal grievance (CountI). In addition to challenging the sexual harassment finding,Plaintiff asserts that the Center Director was biased against himand prejudged the case, in violation of Plaintiff'sconstitutional rights to equal protection and due process of lawunder the Fifth Amendment (Counts II and III). The Department ofVeterans Affairs moves for summary judgment on all three counts.
On April 7, 2000, I issued an Order officially staying this"appeal" until judgment should be entered in Lyons's then pendingcivil suit against Pathak and the Department of Veterans Affairs.That stay lifted pursuant to my Order dated May 4, 2000. Prior tomy stay order, this matter had simply lain dormant for severalyears while the Department, counsel for Pathak, and counsel forLyons litigated Lyons's claims against the Department and Pathak.My Order of May 4 returned this matter to the active docket. OnJuly 28, 2000, I presided over a telephone conference thatresulted in the issuance of an amended scheduling order. Inresponse to plaintiff counsel's request that he be given someleeway to pursue discovery on his due process claim, I permittedPlaintiff some discovery narrowly focused on the issue of whatcommunications took place between the Center Director, whopresided over Plaintiff's suspension, and other Departmentpersonnel.
Although Plaintiff's three-count complaint is captioned as acomplaint for review of administrative action, Plaintiff alsoseeks a jury determination on Counts II and III, which allegeequal protection and due process violations, respectively. Inother words, the complaint is internally inconsistent, whichmakes it difficult to determine whether Counts II and III simplyset forth additional reasons for reversing the VA's disciplinaryaction or seek additional relief of some unspecified form.Because Plaintiff's filings do not indicate what additionalrelief he seeks on Counts II and III, other than a reversal ofthe suspension, I consider these counts to be additional groundsfor his "Complaint for Review."
The statutory and regulatory grounding for this appeal and theunderlying disciplinary and grievance processes exists inportions of the Administrative Procedures Act, 5 U.S.C. § 701 etseq., the Department of Veterans Affairs Health-Care PersonnelAct of 1991, 38 U.S.C. § 7461 & 7463, and in the Department ofVeterans Affairs Disciplinary and Grievance Procedures, MP-5,Part II, Chapter 8, and Supp. MP-5, Part II, Chapter 8.
Scope and Standard of Review
With respect to the scope of review, the record in this caseconsists of the record compiled during the administrativeproceedings. See 5 U.S.C. § 706 (1996). With respect to CountI, I have reviewed the charges listed in the notice ofsuspension, which I conclude the Center Director determined to bethe facts of the case, as established over the course of theinvestigation and Pathak's written and oral response to thecharges.2 With respect to Counts II and III, I confess tobeing troubled by the state of the record. To begin, I havereviewed the administrative record to the extent that theparties' statements of material fact cite to it. However, partsof Plaintiff's Count II and III arguments are constructed out ofstatements made during depositions taken in Kathleen Lyons'sseparate but related civil suit. These depositions cannot beconsidered part of the appellate record in this case.Furthermore, there is no indication that the statements drawnfrom these depositions were introduced in the course ofPlaintiff's grievance. My assumption is that the Department andthe Plaintiff, in an effort to avoid taking further depositionsin this matter, which had already been extensively taken inLyons's suit, agreed to supplement the record in this fashion. Iconsider the record on these counts to consist of thosestatements of fact supported by citations to the administrativerecord and the supplemental depositions taken in 2000 pursuant tomy scheduling order. In addition, I have considered some of thefactual statements Plaintiff supports with extra-record citationswhere, and to the extent that, the Department has admitted them.
With respect to the standard of review, because I consider allthree of Plaintiff's counts to set forth alternative grounds forreversal of the Department's decision, I do not intend to departfrom the standard applicable to claims for review of agencydeterminations.3 Accordingly, I will affirm the Department'sdetermination to suspend Plaintiff unless I find (1) that theDepartment acted arbitrarily or capriciously, abused itdiscretion, or failed to act in accordance with law, id. §706(2)(A); (2) that the Department's determination was arrived atthrough a violation of Plaintiff's constitutional rights orwithout following the laws and regulations applicable to thedisciplinary and grievance processes, id. § 706(2)(B)-(D); or(3) that the Department's determination is unsupported bysubstantial evidence, id. § 706(2)(E). See Dickinson v.Zurko, 527 U.S. 150, 152, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)("The Administrative Procedure Act (APA) sets forth standardsgoverning judicial review of findings of fact made by federaladministrative agencies.")
On December 1, 1994, Kathleen Lyons submitted a memorandum tothe Assistant Chief of Nursing Services, Marianne Taylor,complaining of Pathak's conduct toward her during a trip toChicago in June 1994 for a research conference in their field.This informal complaint essentially commenced an EEOinvestigative process at the Center and Lyons ultimately filed aformal EEO complaint on January 13, 1995. Based on thesecomplaints and investigations related to them, the Center alsocommenced an administrative, disciplinary investigation againstPathak. David Rankin, the labor relations officer at the Center,participated in overseeing this investigation, but he did notconduct it. It fell to E. Douglas Holyoke, M.D., Chief of Staffat Togus, to develop the charges and generate a proposeddisciplinary action, although Rankin apparently drafted thecharging instrument after reviewing the evidence and making sureit was "proper." On March 16, 1995, Lyons met with members of theCenter's management, including the Center Director, to discusssettling her EEO complaint.4 In a memorandum prepared byActing EEO Program ManagerPalmer Stevens following the meeting, Stevens wrote, "Mr. Sims .. . assured [Lyons] that some type of reprimand would beforthcoming to Dr. Pathak and this seemed to be reassuring to Ms.Lyons that something was being done." On March 17, 1995, Pathakreceived a notice of a proposed 14-calendar day suspension,without pay, from Holyoke. The notice recited 14 incidencesalleged to have occurred between Pathak and Lyons between June22, 1994 and January 20, 1995, and informed Pathak that each ofthe 14 "charges" constituted "a separate incident of sexualharassment" and that, taken together, they "show a pattern ofsexual harassment." Those charges provided as follows:
a. On June 22, 1994, while in travel status in Chicago, Illinois, along with Kathleen Lyons, RN, you requested a hotel room near the room assigned to Ms. Lyons; entered Ms. Lyon's [sic] hotel room and attempted to unpack her garment bag; insisted on paying for her dinner; tried to persuade her to visit the Sears Tower with you and, while doing so, took her by both arms and attempted to push her down the street; and telephoned her to visit you in your hotel room.
b. On June 24, 1994, while in travel status along with Ms. Lyons at O'Hare Airport you took Ms. Lyons [sic] luggage and put your name on the tags; intervened in her ticketing, took her ticket, and put it in your jacket pocket; insisted on sitting next to her; and refused to return her ticket until she reached for your jacket to take it herself.
c. On June 30, 1994, you remarked to Ms. Lyons, or used words to the effect, that she was "walking around in her white coat and high heels like she was a big person — big as in important."
d. On July 22nd and 25th, 1994 you disseminated mailman messages to eight recipients which denigrated Ms. Lyons. The July 22, 1994, message stated that a meeting under discussion was "a futile exercise as one person [Ms. Lyons] asked me the material needed for the meeting, I had thought this was expected for all to know." The July 25, 1994 message stated that "it does strike me as hypocritical for anybody in this hospital to say that they are busy with patients." Ms. Lyons had made reference to being busy with patients in a July 25, 1994 message to the same group of recipients which included you.
e. On August 8, 1994, you sent a memorandum to the Chief of Staff and Chief of Medicine with a copy to the Chief Nurse complaining about Ms. Lyons.
f. In a mailman message to Ms. Lyons dated August 30, 1994, you accused her of making a false statement to Mr. Foster [Chief Medical Administration Service]. You further informed her that you would run the show [in RDU] as you saw fit and she could complain to your Chief of Service or hers if she did not like it.
g. On September 8, 1994, you stated to Ms. Lyons, or used words to the effect, that "I really love you and have felt awful but haven't been able to stop myself from acting this way." You then hugged Ms. Lyons.
h. On September 8, 1994, you stated to Ms. Lyons[,] or used words to the effect, that "you are a better person than I am . . . and I love you." You further stated on this occasion, or used words to the effect, that "Randy [Ms. Lyon's [sic] spouse] will be flattered to know that he has some competition".
i. On October 20, 1994 you stated to Ms. Lyons, or used words to the effect, that "I'm going to put my sexual feelings aside and give you a birthday hug." You then hugged Ms. Lyons.
j. On or about November 10, 1994, you asked Allison Daigle, RN, whether she would like to be the Head Nurse in the Renal Dialysis Unit. Ms. Lyons is, and was at all times pertinent to this proposed action, the incumbent in this position.
k. On November 16, 1994, Ms. Lyons requested a meeting with you via mailman message regarding RDU matters. On November 21, 1994, you responded by mailman message that you were "content with whoever is in charge to quickly talk about the issues."
l. On November 26, 1994, you dictated a patient history and physical which named Ms. Daigle, rather than Ms. Lyons, as the Head Nurse of the Renal Dialysis Unit.
m. On December 5, 1994, you disseminated a mailman message to six recipients. In it you referred to one person's vendetta as slandering your character. You concluded the message by saying[,] "So this is a goodbye from the soul. No, I am not leaving, someone else will." These veiled references were to Ms. Lyons.
n. On January 20, 1995, while discussing the need for lab data on a patient with Sylvia Becker, R.N., you gave her a choice between doing a stool collection in the SCU or sending the patient to Ambulatory Care Service. When Ms. Becker responded by saying she needed to ask Ms. Lyons what to do, you stated, or used words to the effect, that, "You don't have to ask Kathy anything, send him to ACS."
Because the notice was merely a charging instrument, itremained for the Center Director, John H. Sims, Jr., to reviewand decide the "case" after Pathak had a chance to respond.Pathak retained legal counsel to represent him before the CenterDirector. Pathak's counsel submitted a legal opinion letter tothe Center Director on March 22, 1995 and also orally arguedPathak's position on April 6, 1995.
On April 18, 1995, the Center Director informed Pathak that thecharges had been sustained and a decision made to suspend Pathakwithout pay for seven calendar days. Those charges compose thefactual background for the Center Director's conclusion thatPathak sexually harassed Lyons.
The EEO proceeding and the Department's disciplinary proceedingare distinct procedures. However, the commencement ofdisciplinary proceedings in this case followed in the wake of theEEO proceeding and began because the EEO officers, the CenterDirector included, considered the EEO complaint to have merit. Asthe Center's EEO Officer, the Center Director was responsible foroverseeing Lyons's EEO complaint and for ensuring that anyallegedly inappropriate conduct would cease and that theoperation of the RDU would be able to proceed without furtherincident. Moreover, it appears from the record that the CenterDirector desired to reach a resolution that would satisfy Lyonsand prevent her from feeling the need to proceed with her formalEEO complaint against the Department. Finally, it is clear fromthe parties' statements of material fact that the lines ofcommunication were generally open between the Center Director andRankin throughout the course of the disciplinary investigation.
On April 26, 1995, Pathak filed a grievance with theDepartment's Regional Director for the Eastern Region, Barbara L.Gallagher, and requested a hearing before a grievance examiner.Grievance examiner Douglas Bender conducted a hearing at theCenter on June 21 and June 22, 1995, and a final, telephonehearing on July 6, 1995. At the conclusion of these hearings, thegrievance examiner inquired of plaintiff counsel, "Mr. Stevens,do you feel you've had — you've been given a full opportunity topresent your side of the case?" Mr. Stevens replied in theaffirmative. In an undated report of his findings andrecommendation, the examiner concluded that the facts representedin the charges were accurate and found Lyons's testimonyconcerning the sexual and retaliatory nature of these incidentsto be more credible than Pathak's opposing testimony. Theexaminer then concluded that thefacts were legally sufficient to support a finding of sexualharassment.5 On August 2, 1995, the Department's RegionalDirector for the Eastern Region accepted the examiner'srecommendation and Pathak's grievance was denied.
1. Count I — Whether the Center Director's legal finding of sexual harassment is supported by his factual findings?
In his memorandum on Count I, Plaintiff Pathak argues that hisconduct was not sufficiently egregious to support a legal findingthat Lyons was placed in a hostile or abusive work environment.He insists that he cannot have sexually harassed Lyons unless hehad subjected her to continued explicit propositions, sexualepithets, or persistent offensive touching, citing Waltman v.Int'l Paper Co., 875 F.2d 468, 477 (5th Cir. 1989). He thenaddresses eight of the charges that describe conduct "in no waysexual." Plaintiff insists that these events reflect notreprisals against Lyons for rebuffing his advances, but"demonstrate an ongoing dispute" relating to the management ofthe RDU. Plaintiff maintains that to the extent Lyons believesthere was sexual innuendo in his conduct in Chicago, she hassimply misunderstood his intentions as a result of their culturaldifferences.
Of course, I do not consider it my prerogative on review toreevaluate whether the events described in these charges werereprisals or not, or whether Plaintiff's conduct in Chicago wassexual or not. The Center Director, like the grievance examiner,clearly rejected Plaintiff's factual arguments on this score andconsidered these non-sexual acts to have occurred due toanimosity arising from those incidents in Chicago. Thus, the solequestion I consider is whether the charges set forth in thenotice of proposed suspension — which are not challenged here asbeing unsupported by the evidentiary record — when takentogether,6 could rationally support a finding of sexualharassment. See Sistema Universitario Ana G. Mendez v. Riley,234 F.3d 772 (1st Cir. 2000) (quotation omitted) ("[U]nder`arbitrary and capricious' review, the court may not substituteits judgment for that of agency officials but rather must focuson whether the agency examined the relevant data andarticulated a satisfactory explanation for its action including arational connection between the facts found and the choicemade.")
To begin, Plaintiff is incorrect that a finding of sexualharassment requires continued explicit propositions, offensivetouching, or subjection to sexual epithets. The Fifth Circuitcase Plaintiff cites for this "general" rule is not supportive ofthis bold assertion. In fact, the Fifth Circuit states in thatcase that sexual harassment may include a much broader categoryof conduct such as "sexual advances, requests for sexual favors,and other verbal and physical conduct of a sexual nature that isunwelcome in the sense that it is unsolicited or unincited andis undesirable or offensive to the employee." Waltman, 875 F.2dat 477 (emphasis added). The Supreme Court has set forth thestandards applied to allegations of a discriminatorily hostile orabusive environment:
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), this language "is not limited to `economic' or `tangible' discrimination. The phrase `terms, conditions, or privileges of employment' evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women' in employment," which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Title VII is violated.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,126 L.Ed.2d 295 (1993) (citation omitted).
In my assessment, I can agree with Plaintiff that his conductwas not as lewd and lascivious or as victimizing as thatdescribed in many of the reported cases of sexual harassment.However, I cannot conclude that the Center Director abused hisdiscretion when he concluded that Plaintiff sexually harassedLyons. I consider the facts found by the Center Director to besufficient to permit a reasonable person to conclude thatPlaintiff's conduct created an environment that was hostile orabusive enough to interfere with Lyons's ability to perform herjob and to make subjection to ridicule and humiliation, not tomention further unwanted sexual comments and overtures, acondition of her job. That such conditions were an outgrowth of arebuffed, unwanted sexual advance and were characterized byfurther humiliating sexual advances and contact is onepermissible conclusion to be drawn from the facts andsufficiently generates a nexus to Lyon's gender to justify theaction taken pursuant to Title VII.
2. Counts II and III — Whether the Center Director violated Plaintiff's rights to due process or equal protection?
In Count II of his Complaint, Plaintiff states, "[B]ecauseplaintiff is a male, defendant accepted allegations made by KathyLyons without conducting an adequate independent investigation asto the truth of her allegations." This is the only allegation inthe Complaint that could support an equal protection claim.However, Plaintiff fails to pursue this issue in any of thememoranda currently under consideration. For that reason, Iconsider Plaintiff to have waived his equal protection claim.See Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 205(1st Cir. 1999) ("Issues adverted to in a perfunctory manner,unaccompanied by some effort at developed argumentation, aredeemed waived for purposes of appeal.").
The real gravamen of Plaintiff's non-evidentiary appeal is thecontention that he was not accorded due process of law becausethe Center Director was not impartial. Specifically, Plaintiffargues that the Center Director could not provide him with a fairhearing because the Center Director had been instrumental in theinvestigation and creation of the charging instrument. AlthoughPlaintiff acknowledges that the Center Director's involvement inboth the investigation and the judgment was not per se illegal,he contends that it was in his case because it violated theAdministrative Procedures Act ("APA"), 5 U.S.C. § 554, whichrequires that different officials preside over the investigativeand the adjudicative proceedings. Plaintiff also argues that,even if the APA was not violated, "the probability of bias on thepart of [the Center Director] was too high to be constitutionallytolerable."
Section 554 of Title 5 of the United State Code provides, inpertinent part:
§ 554. Adjudications
(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved —
(2) the selection or tenure of an employee, except a[n] administrative law judge appointed under section 3105 of this title;
(d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not —
(1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
Section 554 thus requires that in all agency "adjudications" theagency employee who serves as a decision maker must be insulatedfrom those employees who serve the agency in an investigative orprosecutorial role.
The Department argues that Section 554 is inapplicable becausesubsection 554(a)(2) excludes employee tenure issues from therequirements of Section 554 and because Plaintiff's employment isgoverned by Title 38, not Title 5. I agree with the Departmentthat Section 554 is inapplicable to the Department's disciplinaryproceedings. Because the discharge of an employee is a matterrelating to employee tenure, see Normile v. McFague,685 F.2d 9, 10 n. 2 (1st Cir. 1982), I agree with the Department thatlesser employee disciplinary measures such as suspensions aresimilarly excluded from the requirements of Section 554. BecauseI conclude that Section 554 of the APA does not apply to thiscase and because Plaintiff does not contend that the Department'sown employment policies and procedures were violated, I cannotfind any statutory grounding for Plaintiff's due process claim.
With respect to Plaintiff's general argument that the CenterDirector's bias was constitutionally intolerable, I note that itis an open question whether federal employee discipline, short ofdischarge, is a matter of constitutional dimension. See Gilbertv. Homar, 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120(1997) ("Although we have previously held that public employeeswho can be discharged only for cause . . . cannot be firedwithout due process, we have not had occasion to decide whetherthe protections of the Due Process Clause extend to discipline oftenuredpublic employees short of termination.") (citation omitted).Assuming that it is,7 the question presented is whetherPlaintiff received "a fair trial in a fair tribunal," In reMurchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955),for "[n]ot only is a biased decisionmaker constitutionallyunacceptable but `our system of law has always endeavored toprevent even the probability of unfairness.'" Withrow v.Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)(quoting In re Murchison, 349 U.S. at 136, 75 S.Ct. 623).
The general issue presented in this case was considered by theSupreme Court in Withrow. The Court observed that partiesadvancing due process arguments based on the bias of the decisionmaker bear a considerable burden:
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
Id. at 47, 95 S.Ct. 1456. I am not persuaded that Plaintiffmeets this burden. To begin, as the head of the Department'slocal office, the Center Director was, as a matter of basicmanagerial reality, in a position that required him to not onlyoversee Lyons's EEO complaint to ensure that a safe workenvironment was maintained, but also to preside over employeediscipline. This basic reality is most evident from the fact thatthe disciplinary process, although separate and distinct from theEEO process, essentially grew out of the EEO process. However, itdoes not appear that an adverse employment measure was a foregoneconclusion even under these circumstances. Plaintiff waspermitted, pursuant to Department regulations, to argue his casebefore the Center Director both orally and in writing.Furthermore, the notice of suspension reveals that the CenterDirector imposed a seven-day suspension rather than thefourteen-day suspension proposed on account of Plaintiff's"exemplary service to the Agency over the course of [his]career." This considerable leniency tends to refute the existenceof bias on the Center Director's part. Under the circumstancespresented in this case, I conclude that the Center Director wasnot so biased against Plaintiff that he did not receive a fairhearing.
Of course, the foregoing discussion ignores entirely the factthat Plaintiff presented his case to an impartial grievanceexaminer in a three-day, full evidentiary hearing. Thus, even ifthe Center Director had been biased against him, it is hard tounderstand how the subsequent grievance hearing, with additionalreview by the Department's Regional Director, did not provide himwith even more process than he was due. See Cleveland Bd. ofEducation v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84L.Ed.2d 494 (1985) ("The tenured public employee is entitled tooral or written notice of the charges against him, an explanationof the employer's evidence, and an opportunity to present hisside of the story."); Arnett v. Kennedy, 416 U.S. 134, 151-55 &n. 21, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion)(holding that due process clause was not violated when"trial-type" hearing on issue of cause was afforded to civilservant after he was discharged because adequate process wasgiven prior to discharge)."[D]ue process is flexible and calls for such proceduralprotections as the particular situation demands." Morrissey v.Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).Unless an agency's personnel policies provide for a fullevidentiary hearing prior to discharge or discipline, tenuredemployees do not have a right to a full evidentiary hearing priorto a discharge or other adverse employment measures. SeeLoudermill, 470 U.S. at 546, 105 S.Ct. 1487. Yet, that isprecisely the sort of process Plaintiff received in this case.The Department's disciplinary proceedings complied with theDepartment's personnel policy and provided Plaintiff withprocedural safeguards in excess of the requirements of the DueProcess Clause, i.e., an informal hearing followed by a fullevidentiary hearing. Plaintiff's complaint, which focuses almostexclusively on the Center Director's alleged bias, ignores thewell reasoned conclusions of the admittedly unbiased grievanceexaminer. Pathak does not suggest that the Center Director's biasresulted in any distortion of the facts; indeed, he admits mostof the factual recitations. His argument is that the CenterDirector's legal conclusions and resulting disciplinary actionswere the arbitrary and capricious result of his bias. However,the impartial grievance examiner came to the same conclusionafter a full evidentiary hearing. The due process claim isgroundless.
Because the facts found by the Center Director were sufficientto permit a reasonable person to conclude that Plaintiff hadsexually harassed Lyons, Plaintiff's appeal regarding Count I isDENIED and the Department's motion for summary judgment on CountI is GRANTED. Because Plaintiff has abandoned his equalprotection claim, the Department's motion for summary judgment onCount II is GRANTED. Because the Department afforded Plaintiffwith all the process he was due under the circumstances, theDepartment's motion for summary judgment on Count III is likewiseGRANTED.
2 I consider this proper because Plaintiff does not challengethese facts, but only argues what inferences are to be drawn fromthem and what legal significance they have. In other words,Plaintiff does not contend that the record cannot support any ofthese findings.
3 Plaintiff argues in his brief that Counts II and III, atleast, should be analyzed under the summary judgment standard ofreview. He also relies upon a portion of the AdministrativeProcedures Act [5 U.S.C. § 554] as providing statutory supportfor his claim. This confounding of a "Complaint for Review" andan independent cause of action for a claimed constitutionalviolation continues to confuse the analysis of this case.However, I conclude that even if all of the facts relating to theCenter Director's alleged bias were viewed in the light mostfavorable to Plaintiff, there would still be insufficientevidence of a constitutional violation. Thus, as to Counts II andIII, it makes little difference whether the record is reviewedwith deference pursuant to the "APA" or reviewed in the lightmost favorable to Plaintiff under summary judgment review.
4 In the September 6, 2000 deposition of Kathleen Lyons,taken pursuant to my scheduling order, plaintiff counselquestions Lyons regarding a memorandum prepared by PalmerSargent, Acting EEO Program Manager. Although he does notformally introduce or otherwise offer this memo into thesupplemental record — there is no index of exhibits in the 2000deposition — I have considered it anyway. The Department objectsthat the statement is hearsay.
5 In a well-written conclusory paragraph to his "findings andrecommendations," the examiner reasons:
I find it reasonable that Ms. Lyons would find it uncomfortable when a male co-worker, who occupies a position superior to hers in the hierarchy of the Medical Center, has his room moved closer to hers and then attempts to unpack her garment bag, insists on paying for her dinner, physically tries to persuade her to visit the Sears Tower and then invites her to his room that night. I am persuaded that Ms. Lyons immediately took these events seriously and that they disturbed her. Testimony was given that she told co-workers upon her return to Togus that events occurred in Chicago that made her uncomfortable. Dr. Pathak proceeds on several occasions to embarrass Ms. Lyons in front of her peers and superiors through mailman messages and memorandums (charges d, e, m). He physically hugs Ms. Lyons on several occasions, tells her he loves her, tells her that her husband has competition and that he is going to put his sexual feeling aside (charges g, h, i). Other staff members testify as to seeing these incidents. Testimony is given that Ms. Lyons is driven to tears during one of these incidents. On four separate occasions Dr. Pathak intimates [that] he does not want Ms. Lyons as Head Nurse of RDU or no longer considers her as such. Ms. Lyons testified that other staff members joked about how Dr. Pathak was not recognizing her as the Head Nurse, RDU. This became hurtful and undermined her ability to function in her position. I find that this behavior was mentally and physically humiliating and was frequent enough to create a hostile, intimidating and offensive work environment for Ms. Lyons.
6 Pathak contends that I must only consider each chargeindividually because the charging instrument stated that eachcharge amounted to an incident of sexual harassment. I do notagree that this Court is limited in this fashion. The notice ofproposed suspension clearly stated that these events alsoamounted to a pattern of sexual harassment when taken together.
7 That Pathak has a property interest protecting him fromarbitrary suspension is not contested by the Department.
1. Pursuant to Fed.R.Civ.P. 73(b), the parties have consentedto allow the United States Magistrate Judge to conduct any andall proceedings in this matter.