Marquis K.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120150648 (E.E.O.C. Dec. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marquis K.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150648

Agency No. 200H-0642-2013104692

DECISION

On November 29, 2014, 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
November 19, 2014, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physician at the
Agency’s Medical Center in Philadelphia, Pennsylvania. On October 26, 2013, Complainant
filed an EEO complaint in which he alleged that the Chief of Staff, his first-level supervisor (S1),
the Medical Center Director, his second-level supervisor (S2), and an Interim Director2 subjected
him to discriminatory harassment because of his race (Asian), national origin (Asian), sex
(male), age (55), and reprisal (current EEO activity) as follows:

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.

2 S2 had been appointed to his position in an acting capacity on July 15, 2013, and became the
permanent director on October 7, 2013. The Interim Director served in that capacity between
September 9, 2013, and October 4, 2013.
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1. On July 29, 2013, S2 took no action when Complainant reported the Chief of Staff for
offensive conduct, humiliation and ignoring him (Complainant).

2. On May 28, 2013 and on August 19, 2013, S1 appointed physicians other than
Complainant to serve as acting Chief of Staff.

3. On September 17, 2013, S1 appointed another physician in a newly-created position
of Associate Chief of Staff (ACS Selectee).

4. On September 27, 2013, S1 issued Complainant a memorandum signed by the Interim
Director reassigning him from the position of Assistant Chief of Staff to the position
of Staff Physician in primary care.

5. On October 13, 2013, S1 removed Complaint from all management committees and
service chief groups in which he previously participated.

6. On October 16, 2013, S1 told Complainant to return the parking sticker that had been
issued to him while he was in his previous management position.

7. On October 25, 2013, S1 had Complainant relocated from his private office to an
office that he had to share with two other physicians.

8. On October 25, 2013, Complainant’s telecommute agreement was terminated at the
direction of S2.

9. On January 21, 2014, senior management officials of the Philadelphia VA Medical
Center excessively delayed approval of Complainant’s travel funded by the Agency’s
Central Office.

10. On April 10, 2014, Complainant became aware that he was not awarded his physician
performance pay for Fiscal Year 2013.

In addition, Complainant identified incidents (4), (5), (8), and (10) as separate instances of
disparate treatment, apart from the creation of a hostile work environment. At the conclusion of
the ensuing investigation, the Agency provided Complainant with a copy of the investigative
report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a final decision without a hearing, and in accordance with
Complainant’s request, the Agency issued its decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s final decision concluded that Complainant proved he had been subjected to
reprisal with respect to incident (10) only, noting that S1 and S2 had become aware that
Complainant had filed a formal EEO complaint on November 1, 2013, and that they had caused
his performance pay award to be delayed. On all the remaining incidents, the Agency concluded
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that Complainant failed to meet his burden of proof on the issue of unlawful motivation on the
part of S1, S2, and the Interim Director.

Incident (1): Complainant averred that on July 29, 2013, two weeks after S2 had been appointed
as Acting Medical Center Director, he met with S2 and informed him of the difficulties he had
been having in his relationship with S1. He averred that he told S2 that S1 had been
marginalizing and undermining him during the previous ten months. IR 248-49. He further
averred that S1 had stopped appointing him to serve as Acting Chief of Staff and had appointed
others to chair medical executive committees. IR 249-52. Complainant also stated that during
this meeting, he informed S1 that he had met with an attorney and was considering whether to
file a formal EEO complaint. IR 249, 252. S2 disputed this. He averred that Complainant did
not make reference to consulting with an attorney at the July 29, 2013 meeting, but rather at a
second meeting that occurred after he became the permanent director on October 7, 2013. IR
355. When asked by the investigator whether Complainant had mentioned that he was being
discriminated or retaliated against by S1, S2 replied no, and stated that Complainant had told him
that he did not understand why S1 was marginalizing him. IR 355. S2 further averred that after
his initial meeting with Complainant on July 29, 2013, he followed up with S1, asking S1 about
the situation with Complainant, and that S1 had informed him that Complainant was disruptive,
arrogant, argumentative, abrasive, untrustworthy, and was the subject of complaints from the
medical staff. IR 353-56. When S1 was asked whether S2 had relayed to him that Complainant
felt that he was being discriminated or retaliated against, he replied that S2 had told him that
Complainant expressed that he was underutilized in his capacity as the Assistant Chief of Staff.
IR 320-24.

Incident (2): Complainant averred that as part of S1’s ongoing effort to systematically and
progressively marginalize him, S1 appointed a younger female physician to serve as Acting
Chief of Staff from May 28 through May 30, 2013, and again from August 19 through August
23, 2013. IR 253-54. S1 responded that Complainant had an expectation that he would serve as
Acting Chief of Staff every time that S1 was out of the office, and that his practice was to rotate
the function among the senior physicians, including Complainant. S1 pointed out that the May
appointee was the Chief of Medical Education while the August appointee was the Chief of
Emergency Medicine. IR 323-24.

Incident (3): Complainant averred that he had read an email from S2 dated September 17, 2013,
that the ACS Selectee had been appointed to fill the newly-created position of Associate Chief of
Staff for Clinical Operations. IR 256-61. S1 averred that he created the position in response to
concerns raised by management consultants concerning the management of “hospital flow,”
which was shorthand for moving patients in and out of the emergency room. S1 stated that he
was looking for an individual who could improve hospital flow and that the ACS Selectee, who
he recruited from outside the Agency, had the experience and background needed to fill the
position. IR 325. Both S1 and S2 stated that the creation and filling of the ACS position was in
the works before S2’s appointment as Acting Director in July 2013. IR 329, 357.

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Incident (4): Complainant averred that on September 27, 2013, within ten days of appointing the
ACS Selectee to the position of Associate Chief of Staff for Clinical Operations, S1 had
abolished his position as Assistant Chief of Staff. IR 261. Complainant had received a
memorandum from S1 signed by the Interim Director informing him that his position as
Assistant Chief of Staff had been abolished and that he would be reassigned as a staff physician
in the primary care unit. The memorandum also informed him that there would be no change in
pay. IR 245, 262-63, 267, 358, 375, 432. S1 advised Complainant that his position as Assistant
Chief of Staff was no longer needed. IR 263-64, 417-18, 431. S1 averred that as Chief of Staff,
he had become aware of major problems at the Medical Center having to do with hospital flow
and clinical operations, and that a reorganization was necessary to address those problems. He
further averred that after consulting with Human Resources Staff members, he determined that
there was no longer any value in retaining the Assistant Chief of Staff position. IR 330. In
addition, S1 stated that nine other physicians and dentists had their positions altered in some
fashion as a result of the reorganization. IR 335-37.

Incident (5): Complainant averred that on October 13, 2013, S1 removed him from all of the
committees that he had been serving on, including the Executive Leadership Operations Council,
the Executive Leadership Group, the Chief of Staff Advisory Group, and other groups. IR 270,
272. He stated that S1 had undertaken these efforts in order to further marginalize and undermine
him. IR 266-67. In a memorandum to Complainant dated October 16, 2013, S2 informed
Complainant that he would have to transition his chairmanship of the Quality Council to him, S2,
effective immediately but that Complainant would continue in his consultant role to the office of
primary care. IR 358, 433. S1 acknowledged that Complainant had served on numerous
committees while serving Assistant Chief of Staff but maintained that since he was no longer in a
management position, he no longer needed to serve on management committees. IR 321-22,
337.

Incident (6): Complainant averred that on October 16, 2013, S2 took away his parking
privileges. IR 271-72. In the October 16, 2013 memorandum, S2 requested that Complainant
return his parking decal to the Director’s office and to work with staff to obtain the proper
parking detail for the garage. IR 433. S1 and S2 averred that Complainant was allowed to retain
on-site parking but had to move to a different location within the lot because of his new position.
IR 337-38, 358, 361-62.

Incident (7): Complainant averred that on October 25, 2013, he was told that he would have to
relocate from his private office and would have to share office space with two other physicians.
IR 273. He acknowledged that the Facility Space Planner, the individual charged with procuring
office space for Complainant, had attempted to locate a private office for him but that those
attempts were unsuccessful. IR 273-74. S1 also averred that he tried to find a private office for
Complainant but had been unable to do so. IR 338-39. A Program Specialist working for the
Facility Space Planner averred that he was instructed to locate a private office for Complainant,
and that after conducting an extensive search he was unable to do so. IR 316.

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Incident (8): Complainant averred that on October 25, 2013, he received a letter from S2
informing him that his telecommuting agreement, which had been in effect for four years and
had been renewed in May 2013, had been canceled. IR 276-77. S1 and S2 both averred that S2
had cancelled the telework agreements of Complainant and other members of the medical staff
because they wanted them to be at the workplace and did not believe that telework was
appropriate. IR 339, 363.

Incident (9): Complainant averred that he had submitted paperwork on January 6, 2014, for
travel to Prescott, Arizona between January 27-31, 2014, but that his travel request had not been
approved until January 22, 2014. IR 283-86, 483, 549. S1 averred that he received, reviewed
and signed off on Complainant’s travel request on January 9, 2014. IR 343.

CONTENTIONS ON APPEAL

Complainant contests the Agency’s findings in its final decision that S1 and S2 did not become
aware of Complainant’s EEO activity until November 1, 2013, when they were informed that
Complainant had filed his formal EEO complaint several days earlier. He contends that he first
informed S2 at their initial meeting on July 29, 2013, that he was considering filing an EEO
complaint and that he had already spoken with an attorney about the matter. Appeal Brief, pp. 4-
5, 7-8, 17-18, 22, 26-27, citing IR 249, 251-52, 356. Complainant’s appeal does not address the
Agency’s final decision as it pertains to incident (10).

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”).

We note that Complainant’s appeal does not address the Agency’s final decision finding
discrimination as to incident (10). The Agency found that S1 and S2 became aware that
Complainant had filed a formal EEO complaint on November 1, 2013 and that Complainant was
the only one of 267 physicians who had received a performance rating of “excellent” not to
receive an award on time. Although the date that Complainant actually received a performance
award was not specified in the record, Complainant never challenged the Agency’s finding that
he eventually did receive a performance pay award in the amount of $8,750. See Final Agency
Decision, pp. 14-15. Accordingly, we will affirm the Agency’s final decision finding
discrimination as to incident (10).

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We next note that although the Interim Director was named by Complainant as a responsible
management official, his involvement in the matter was minimal. The Interim Director had
signed the September 2013 memorandum notifying Complainant of the abolition of his Assistant
Chief of Staff position strictly as a pro forma matter, nothing more. Consequently, we find that
the Interim Director played no significant role in any of the incidents at issue in the complaint
now before us.

Next, we must resolve the factual issue of when S1 and S2 actually became aware of the instant
EEO complaint, which is Complainant’s point of contention on appeal. The record references
three possible points in time at which this could have occurred. First, as noted above in our
description of incident (1), Complainant stated that he first informed S2 on July 29, 2013, of his
intent to file an EEO complaint and that he had spoken with an attorney for that purpose. IR
249. Second, the EEO Counselor’s report as well as Complainant’s affidavit indicated that the
EEO Counselor contacted Complainant on October 11, 2013, to report that he had interviewed
S1 on October 9, 2013, as part of his efforts to informally resolve the matter. IR 60, 269-71,
274-75, 277, 286. The report indicates that on October 3, 2013, Complainant waived his right to
anonymity during the counseling process. IR 60. Third, in its final decision, the Agency stated
that S1 and S2 were officially notified on November 1, 2013, that a formal EEO complaint had
been filed. Final Agency Decision, p. 14. Based upon the foregoing evidence, we find that S1
first became aware of Complainant’s EEO activity on October 9, 2013, during the pre-complaint
stage of the administrative process, which precludes a finding of reprisal on incidents (1) through
(4).

Harassment – Incidents (1) through (9):

Harassment of an employee that would not occur but for the employee’s race, sex, national
origin, or age is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal
Service, EEOC Appeal No. 01972699 (August 14, 1998). To establish a claim of harassment
Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on his statutorily protected classes; (4) the
harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been
“sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create
an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, in order to establish his harassment claim, Complainant must show that he was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Since Complainant has
also alleged reprisal, he must prove that the actions of S1 or S2, were harmful to the point that
they could dissuade a reasonable person from making or supporting a charge of discrimination.
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Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3)
& n. 137 (Aug. 25, 2016). Only if Complainant satisfies his burden of proof with respect to all of
these elements, intent and either hostility or chilling effect, will the question of Agency liability
for harassment present itself.

By virtue of his race, national origin, and gender as well as being over forty years of age and
initiating the instant EEO complaint, Complainant has satisfied the first element of his
harassment claim. We likewise find that the conduct described in incidents (1) through (9) is
unwelcome from Complainant’s own subjective perspective. This is all that is necessary to
satisfy the second element of his claim. See Floyd L. v. Dept. pf Veterans Affairs, EEOC Appeal
No. 0120150737 (Apr. 27, 2017).

In order to establish the third element with respect to incidents (1) through (9), Complainant
must show that S1 or S2 relied upon considerations expressly proscribed by Title VII or the
ADEA in taking the actions described in incidents (1) through (9). See Aldaberto P. v. Dept. of
Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016); Rufus G. v. U.S. Postal
Service, EEOC Appeal No. 0120142395 (Mar. 29, 2016); Joni M. v. Dept. of Homeland
Security, EEOC Appeal No. 0120142884 (Feb. 1, 2016). In support of his claim, Complainant
presented affidavits from two other witnesses. The first witness was the Program Specialist who
had been working with the Facility Space Planner to find Complainant a private office. When
asked by the investigator whether he believed that S1’s actions in connection with his efforts to
find a private office were due to Complainant’ race, sex, national origin, age, or EEO activity,
the Program Specialist replied that he would not speculate about the reasons for S1’s actions, but
opined that those actions were punitive toward Complainant. IR 317. The second witness was
an African-American Female Primary Care Physician (AAF Doctor) who provided a detailed
affidavit in which she stated under oath that S1 had reassigned her from emergency care to
primary care without ever discussing the reassignment beforehand, and that she had filed an EEO
complaint of race discrimination on the matter that had been settled. She opined that S1’s
pattern had repeated itself in Complainant’s case. IR 306-08. She also opined that S1 had
exhibited a pattern of removing minority physicians from posts they had been functioning in
effectively for years, and that in Complainant’s case, just as in hers, there was no performance
issue that prompted the action. IR 309-11.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
AJ’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. As such, we find that the AAF Doctor’s
opinion about Complainant’s situation is just that, an opinion, which is not sufficient for
Complainant to show that the actions taken by the Agency in his case were due to his protected
bases.

Additionally, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. As to incident (1), the affidavits of S1 and S2 indicate that S2 followed up with S1
concerning the matters raised in his discussion with Complainant on July 29, 2013. While the
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outcome of S2’s follow-up efforts did not play out in the way Complainant might have
anticipated, this was not a situation in which S2 had failed to take any action at all, as
Complainant alleges. Regarding incident (2), S1 had an informal system in place in which the
various managing physicians, including Complainant, would rotate in the position of Acting
Chief of Staff while S1 was out of the office. The individuals who were chosen to serve in that
capacity in May and August of 2013 had merely taken their turns as Acting Chief of Staff when
those turns came up.

Concerning incidents (3) and (4), the record establishes that as a result of an internal review of
the facility’s operations, S1 had come to the conclusion that the facility needed to be more
efficient in moving patients in and out of the emergency room and better manage its clinical
operations. This was of such paramount concern to S1 that he felt the need to create a new
management position that would oversee this effort. Once the decision was made to create the
Associate Chief of Staff position, he actively sought out an individual with the necessary
background and experience. Complainant did not have that experience. The ACS Selectee did.
As a result of this operational change, and based upon consultations from the Human Resources
office, S1 had determined that the Assistant Chief of Staff position was no longer necessary, and
accordingly, he abolished it with the concurrence of S2 and Human Resources.

As to incidents (5), (6), and (7), the removal of Complainant from his previously-held
management committee assignments, the changes to his parking privileges, and the relocation of
his office all flowed from his transition from his position as a management official to a staff
physician. Concerning incident (8), S2 had made it clear when he took over that he had intended
to tighten the telecommuting policy, and since Complainant had returned to the practice of
medicine full time, he needed to be at the facility. Finally, with regard to incident (9), we can
find no irregularity in the approval process regarding Complainant’s travel-related paperwork.
To the extent that there was a delay in the processing of Complainant’s travel paperwork, that
delay was solely attributable to the normal functioning of the travel approval process.

We find that all of these incidents resulted from business decisions made by S1 and S2 in the
exercise of their management prerogatives. None of them, either singly or collectively, are
harmful enough to engender a hostile work environment or create a chilling effect upon the EEO
process. We further find that Complainant has not shown that the Agency’s actions were severe
or pervasive such that a legally hostile work environment existed. Consequently, we find the
evidentiary record insufficient to support Complainant’s claim of discriminatory harassment.

Disparate Treatment – Incidents (4), (5), and (8):

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
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facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with in this case, however, since the Agency
articulated legitimate, nondiscriminatory reasons for its conduct in all three incidents. See U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Regarding incident (4), S1
stated that he had made the decision to abolish Complainant’s Assistant Chief of Staff position as
part of an overall restructuring of the organization to better respond to the needs of patients. As
to incident (5), S1 averred that since Complainant was no longer part of management, his
presence on the various management committees on which he served was no longer required.
Concerning incident (8), S2 stated that the work performed by physicians and other medical staff
did not lend itself to telework.

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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be
demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC
Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past
personal treatment attributable to those responsible for the personnel action that led to the filing
of the complaint, comparative or statistical data revealing differences in treatment across various
protected-group lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12,
2015).

As noted above in our discussion of the third element of Complainant’s harassment claim,
Complainant relies on the AAF Doctor’s affidavit in support of his claim. However, this is not
sufficient for Complainant to prove pretext. We therefore agree with the Agency that
Complainant has not presented evidence sufficient to establish an unlawful motive on the part of
S1 or S2 with respect to these three incidents.

Remedies – incident (10):

When discrimination is found, the Agency must provide the Complainant with a remedy that
constitutes full, make-whole relief to restore him as nearly as possible to the position he would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of
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the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses
(i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish)
as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process. For an employer with more than 500
employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000. 42 U.S.C. § 1981a(b)(3). In accordance with the Agency’s finding of
reprisal with respect to incident (10), we will enter an order directing the Agency to provide all
appropriate relief, including compensatory damages and attorney’s fees.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination with respect to incidents (1) through (9), and
finding discrimination with respect to incident (10). We REMAND this matter for further
processing in accordance with our order below in light of the Agency’s finding of discrimination
with respect to incident (10).

ORDER (C0610)
The Agency is ordered to take the following remedial action to the extent that it has not already
done so:

1. Within ninety (90) calendar days from the date that this decision is issued, the Agency
shall complete a supplemental investigation in order to determine Complainant’s
entitlement to compensatory damages incurred as a result of the Agency’s unlawful delay
in awarding him physician performance pay for Fiscal Year 2013 as described in incident
(10). The Agency shall afford Complainant the opportunity to submit evidence in
support of his claim for damages within the 90-day time frame, and Complainant shall
cooperate with any additional evidentiary requests made by the Agency. Within thirty
(30) calendar days of the date that the Agency determines the amount of compensatory
damages owed Complainant, the Agency shall pay that amount.

2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide a minimum of eight hours of in-person or interactive training to the responsible
management officials at the Medical Center in Philadelphia, Pennsylvania identified as
S1 and S2 in this decision, regarding their responsibilities under EEO laws, particularly
with respect to disability discrimination, discriminatory harassment, and retaliation for
protected EEO activity.

3. Within sixty (60) calendar days of the date this decision is issued, to the extent that the
responsible management officials identified in Complaint No. 200H-0642-2013104692 as
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S1 and S2 are still employed at the facility, consider taking appropriate disciplinary
action against these officials. The Commission does not consider training to be
disciplinary action. The Agency shall report its decision to the Compliance Officer. If
the Agency decides to take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline. If the responsible management officials have left the
Agency's employ, the Agency shall furnish documentation of their departure dates.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its Medical Center in Philadelphia, Pennsylvania, copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive
days, in conspicuous places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice is to be submitted to the
Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period. The report must be in
digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.

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),
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
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.

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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

December 20, 2017
Date