German D, Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 12, 20170520170383 (E.E.O.C. Sep. 12, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 German D, Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Request Nos. 0520170383 and 0520170591 Appeal Nos. 0120151946, 0120170037 Agency Nos. 200H-0642-2014102984, 200H-0642-2015101550 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the consolidated decision in EEOC Appeal Nos. 0120151946 and 0120170037 (May 9, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. §1614.405(c). Complainant filed a formal complaint on August 5, 2014, alleging that the Agency subjected him to discrimination on the bases of national origin (Asian Indian), color (brown), age (66) and in reprisal for prior protected EEO activity when: 1. Since June 2013, the Patient Advocate Liaison Designee for the Clinic (Designee) does not allow Complainant adequate time to manually type patient information, and does not allocate adequate time for review of veterans’ service treatment records (STRs). 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0520170383, 0520170591 2 2. From April 2014, to the present, the Chief of Staff who is Complainant’s Second-line Supervisor, and the Chief of Health Administration Service (Service Chief), have deliberately manipulated Complainant’s Compensation & Pension (C&P) exam profile schedule causing less time for evaluations and causing Complainant to practice outside his scope of clinical expertise. 3. On April 11, 2014, the Chief of Staff and the Service Chief challenged Complainant’s professional status due to a “fictitious report” accusing Complainant of lack of professionalism towards patients and employees. 4. On April 11, 2014, Complainant became aware that Complainant’s first-line Supervisor (Supervisor) and the Service Chief reduced Complainant’s performance pay for fiscal year October 2012 to September 2013, based on the “fictitious report” by the Service Chief. 5. On June 20, 2014, the Designee refused to provide Complainant copies of patient complaints that were lodged against Complainant. 6. On July 10, 15, and 18, 2014, the Designee refused to be available to Complainant to assist with patient care issues. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant then filed a second formal complaint on February 12, 2015. In that complaint, Complainant and subsequent amendments, Complainant alleged discrimination and harassment on the bases of color, national origin, age, and in reprisal for protected EEO activity when: 7. Complainant believed that Management had prepared false reports against him which could potentially result in his removal or they may report him to the state licensing board. 8. On January 8, 2015, the Designee forwarded 12 false patient complaints against Complainant to the Chief of Staff. 9. On January 8, 2015, the Supervisor reissued his proficiency report with comments about several patient complaints. 10. On January 8, 2015, the Supervisor in corroboration with the Facility Director approved only 51% out of 100% performance pay for Complainant and included negative comments on the performance pay forms. 11. On January 20, 2015 and ongoing, the Supervisor, the Facility Director and other management officials deliberately fully booked Complainant’s clinic schedule while Caucasian doctors’ clinics are not fully booked and booked Complainant’s clinic schedule with belligerent and hostile patients. 12. On January 20, 2015 and ongoing, the Supervisor, the Facility Director and other management officials reduced the time that he performed Compensatory and Pension (C&P) exams by 50 percent; and 0520170383, 0520170591 3 13. On February 19, 2015, the Supervisor in corroboration with the Facility Director issued Complainant a written counseling after the FOIA Officer accused Complainant of misconduct during a staff meeting. The Agency dismissed claim (7) for failure to state a claim. The Agency accepted claims (8) – (13) for investigation. Following the investigation, the Agency provided Complainant a copy of the report of investigation and notified him of the option to request a hearing before an EEOC AJ. Complainant failed to respond. Thus, the Agency issued a decision finding Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed both decisions to the Commission. Complainant requested the two cases be consolidated for processing. The Commission consolidated the appeals and addressed the appeals in a single decision. The Commission affirmed the dismissal of claim (7). The Commission affirmed the Agency’s decisions finding no discrimination with regard to the remaining claims. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal Nos. 0120151946 and 0120170037 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 0520170383, 0520170591 4 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 12, 2017 Date Copy with citationCopy as parenthetical citation