German D, Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 12, 2017

0520170383 (E.E.O.C. Sep. 12, 2017)

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.
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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
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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.

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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