James R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 10, 20190120180462 (E.E.O.C. Apr. 10, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180462 Agency No. 2003-0549-2016105139 DECISION On November 17, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 18, 2017 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physician's Assistant, GS-12, in the Orthopedics Section of Surgery Services at the Agency’s North Texas Hospital in Dallas, Texas. On December 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity (May 2015 EEO complaint and complaint with Office of Special Counsel) when, on September 1, 2016, management issued Complainant a rating of “High Satisfactory” on his performance appraisal and issued the rating seven months late. Complainant stated, in justifying the rating, his Supervisor (S1) referred to an incident where Complainant had a disagreement with one of S1’s personal friends. 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. 0120180462 2 Investigation During the EEO investigation, the Orthopedics Section Chief, S1 (no prior EEO activity), stated that he based Complainant’s rating on several negative interactions with various employees at the Dallas VA Hospital. Specifically, S1 stated that the Emergency Room (ER) Chief informed him that Complainant had an inappropriate incident with Attending Staff there, and that he witnessed a portion of an incident with a full-time Physician in their section. S1 stated that the Surgical Services Physician threatened to quit Agency employment due to the incident. S1 stated that he planned to discuss the proficiency rating with Complainant, but Complainant refused to do so. S1 stated that he completed the proficiency report when the Department of Surgery brought it to his attention, and he was unsure if the rating was late. Further, S1 stated that he attended a Human Resources (HR) meeting where management was informed that employees had to go “above and beyond their normal day to day activities” to warrant the highest possible rating of Outstanding. S1 stated that he held a meeting and informed staff about the HR expectation for an Outstanding rating, and Complainant was unreceptive to the information. S1 also stated that he inherited a very “dysfunctional service” as it did not perform any total joint surgery for approximately 18 months prior to his arrival and some difficult decisions had to be made regarding responsibilities. He noted that Complainant was unhappy with some of the work changes. In pertinent part, the record contains the documents that follow. ▪ A Proficiency Report for February 9, 2015 to February 9, 2016 for Complainant. The Report is dated August 31, 2016 by S1 and the Surgical Service Chief (S2), who was the Approving Official. The Report stated that Complainant “refused to sign.” S1 rated Complainant as “High Satisfactory” overall. Specifically, he rated Complainant “Outstanding” in Clinical Competence, “High Satisfactory” in Education Competence and Administrative Competence, and “Satisfactory” in Personal Qualities. S1 stated, “[Complainant’s] weakness during this rating period has to do with interpersonal communication. There have been several episodes of complaints secondary to this deficiency from colleagues, attending staff, other [facility] staff.” ▪ A Proficiency Report for February 9, 2014 to February 9, 2015 for Complainant. The Report is dated March 16, 2015 by S1 and March 18, 2015 by S2. S1 rated Complainant “Outstanding” in the four competencies and overall. ▪ A Proficiency Report for February 9, 2013 to February 9, 2014 for Complainant. The Report is dated April 15, 2014 by S1 and S2. S1 rated Complainant “Outstanding” in the four competencies and overall. 0120180462 3 Post-Investigation Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. The Agency stated that Complainant requested an immediate final decision. On October 18, 2017, the Agency issued a final decision finding no discrimination. The decision stated that Complainant failed to show that he received his performance rating based on his prior EEO activity. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. 0120180462 4 See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for rating Complainant as “High Satisfactory” rather than “Outstanding” for the 2015-2016 performance period. Complainant’s Supervisor, S1, stated that he based Complainant’s rating on several negative interactions with other employees at the Dallas VA Hospital. S1 cited an instance when the ER Chief informed him that Complainant acted inappropriately with ER Attending Staff and an instance where S1 witnessed some of a negative incident between Complainant and a Surgical Services Physician. S1 stated that the Physician threatened to quit Agency employment following the incident. Further, S1 stated that HR informed management that employees had to go “above and beyond their normal day to day activities” to warrant an “Outstanding” rating. S1 stated that he held a staff meeting and relayed information about the HR expectation for an Outstanding rating, and Complainant was not receptive to the information. S1 noted that Orthopedics was “dysfunctional” before he arrived and that he had to make some changes there. He noted that Complainant was unhappy with some of the work changes. We find that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 0120180462 5 at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. The court has the sole discretion to grant or deny these types of requests. 0120180462 6 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 April 10, 2019 Date Copy with citationCopy as parenthetical citation