[Redacted], Zula G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021002079 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zula G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002079 Agency No. 200P-0612-2020100133 DECISION On February 15, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 26, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Lead Physician at the Agency’s Northern California VA Healthcare System in Mather, California. On November 19, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Asian/Indian), national origin (India), sex (female), religion (Hindu), and age (over 40) when: 1. In June and July 2018, management did not provide Complainant assistance to cover for another doctor who was on leave for five weeks; 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. 2021002079 2 2. Since August 2018, management subjected Complainant to numerous inequities compared to male co-workers and co-workers of a different race; 3. On October 4, 2019, management requested that Complainant conduct an Ongoing Professional Physician Evaluation (OPPE) on two physicians whom she did not know; 4. Since August 2018, management prevented Complainant from performing her role as Designated Women’s Health Provider; 5. Since August 2018, management did not provide her credit for work completed at home; 6. On December 19, 2018, the Chief of Primary Care, who was Complainant’s first level (“S1”), delayed approving Complainant’s leave request submitted on September 26, 2018; 7. On March 1, 2019, Complainant learned that other physicians received relocation package funding when they were hired, while she did not; 8. On September 18, 2019, management denied Complainant official time to respond to an EEO complaint filed against her; 9. On October 1, 2019, Complainant learned she was not selected for the position of Assistant Supervisory Lead Physician; 10. In October 2019, management awarded Complainant $9,000 performance pay instead of the maximum amount of $15,000; 11. On December 4, 2019, management issued Complainant a Sick Leave Restriction Certification memorandum; 12. On December 4, 2019, management rated Complainant “Fully Successful” on her annual evaluation; 13. On February 3, 2020, due to the discriminatory harassment, Complainant was forced to accept a demotion from a Supervisor Physician to a nonsupervisory Physician position effective March 1, 2020; 14. On March 1, 2020, Complainant was assigned to Section F; and 15. On March 6, 2020, Complainant was assigned to a patient panel for which the previous physician had not documented patient information for the past 5 years. 2021002079 3 After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on March 11, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant submitted a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment: Claims 4 - 12 and 14 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 a complainant to prevail, he or she 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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, as here, the agency has articulated a legitimate, nondiscriminatory 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. 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). The Supervisory Physician/Assistant Chief, Primary Care Service (“S1”) was Complainant’s first line supervisor (“S1”) and the Chief of Primary Care was her second line supervisor (“S2”). Regarding claim 4, Complainant claimed that since August 2018, management prevented Complainant from performing her role as Designated Women’s Health Provider, S1 asserted that she did not prevent Complainant from performing the Designated Women’s Health Provider role and that Complainant “chose not to do so.” 2021002079 4 Regarding claim 5, Complainant alleged that since August 2018, management did not provide her credit for work completed at home, S1 explained that Complainant was approved remote access to systems and she may have chosen to access systems after usual duty hours of her own volition but has never been asked or instructed to do so. S1 further noted that Complainant has called in sick and nevertheless attempted to perform her customary work from home while she is supposed to be recuperating from illness and has been expressly told not to work when ill. Regarding claim 6, Complainant claimed that on December 19, 2018, S1 delayed approving Complainant’s leave request submitted on September 26, 2018. S1 stated, however, that on October 22, 2018, Complainant sent an email requesting leave for December 21, 2018 through January 4, 2019. S1 noted that approval of Complainant’s leave request was emailed back to Complainant on October 23, 2018 and she acknowledged this approval and forwarded it to the clerical lead to effect cancellation of her clinics to enable her absence. Regarding claim 7, Complainant asserted that on March 1, 2019, Complainant learned that other physicians received relocation package funding when they were hired while she did not, S1 stated that various incentives such as recruitment or relocation are individually approved with each Full-Time Equivalent (“FTE”) at the discretion of executive leadership. He stated he must defer to the service Chief and/or Chief of Staff and was not empowered to approve any hiring actions, or to offer any incentives in his role with the Agency. Regarding claim 8, Complainant claimed that on September 18, 2019, management denied Complainant official time to respond to an EEO complaint filed against her, S1 stated that he first became aware that an EEO complaint was filed against Complainant by a named physician. He stated that in support of Complainant, he answered a detailed document request “sparing the Complainant all of that work” and approved time for Complainant to speak with Employee Relations/Labor Relations (“ER/LR”) Specialist. S1 stated that on September 20, 2019, Complainant sent an email thanking him for helping her compete the affidavit. To the extent that this matter can be construed as a denial of official time as a separately processable claim independent of discriminatory motives, we determine that the record supports a finding that to establish that Complainant was provided a reasonable amount of official time. See 29 C.F.R. 1614.604(b) Regarding claim 9, Complainant alleged that on October 1, 2019, Complainant learned she was not selected for the position of Assistant Supervisory Lead Physician. The Administrator Officer, Primary Care was the Chairperson of the selection committee, and the Physician Supervisor, Primary Care - Mather was the selecting official. The Chairperson explained that there were three candidates for the Assistant Supervisory Lead Physician position and all candidates were asked the same questions. The Chairperson explained that Complainant scored a total of 52 points out of a possible 75 while the selectee scored 56 points. The Chairperson noted that the panel determined that the selectee was best fit for the subject position because he was already in a leadership position. 2021002079 5 The Site Manager for the McClellan Community-Based Outpatient Clinic (“CBOC”) was one of the members of the selection committee for the Assistant Supervisory Lead Physician position. She stated that she is a supervisor but has never supervised Complainant. The Site Manager stated that she scored Complainant 18 out of 25 while the selectee scored 19 out of 25. She noted that selectee’s answers were very thoughtful, as the VA is asked to champion many initiatives, nothing some initiatives adversely affect staff morale and cause rework. However, the selectee came up with a solution that helped meet the initiative and addresses staff concerns. The Site Manager noted that Complainant’s response did not address the question. The Nurse Manager was one of the members of the selection committee for the Assistant Supervisor Lead position. She stated that she scored the candidates’ independently without influence. She ranked Complainant as second while the selectee was ranked first. The Nurse Manager stated that the selectee was more qualified than Complainant because the selectee had several years as a provided and Patient-Aligned Care Team (“PACT”) assignment and she provided “more detailed specifics to the questions asked.” The Physician Supervisor, Primary Care, Mather (Christianity, Asian, male, South Korea, over 40) stated that he selected the selectee based strictly on the interview scores. Regarding claim 10, Complainant alleged that In October 2019, management awarded Complainant $9,000 performance pay instead of the maximum amount of $15,000, S1 stated that Complainant signed the projected performance pay plan for FY19 in which she was cognizant of the criteria for the awards and the data that would be used to judge her success. S1 noted that Complainant, similar to all her colleagues, did not perform well enough to warrant a maximum award, and that “no provider in the service achieved the maximum amount of $15,000.” Regarding claim 11, Complainant claimed that on December 4, 2019, management issued Complainant a Sick Leave Restriction Certification memorandum, S1 stated that Complainant had a pattern of sick calls on Mondays and Fridays or Tuesdays after holiday-Mondays. He was instructed by the Service Chief to investigate. Thereafter, S1 contacted the ER/LR Specialist who performed an analysis on Complainant’s leave pattern. The ER//LR Specialist felt that the leave pattern was highly problematic and recommended a sick leave certification memorandum, which she drafted. Also it was determined that Complainant allowed her FMLA to lapse and was attempting to invoke FMLA leave where none was available. Furthermore, S1 stated that in good faith, the Sick Leave Restriction Certification memorandum was rescinded but he nevertheless counseled Complainant regarding her obligations to assure that she submitted FMLA paperwork in a timely manner as not to allow a lapse that would lead to false invocation. S1 indicated further that Complainant was responsible to assure her VA Time and Analysis System (“VATAS”) entries are accurately invoked FMLA, and her leave was properly noted. Regarding claim 12, Complainant asserted that on December 4, 2019, management rated Complainant “Fully Successful” on her annual evaluation, S1 stated that Complainant met some basic expectations and excelled in some areas, but not in others. Complainant therefore did not qualify for an Exceptional rating. 2021002079 6 Specifically, S1 stated that there were concerns relating to Complainant’s failure to communicate effectively with her BUE [Bargaining Unit Eligible] “including micro-aggressive and aggressive behaviors that were perceived as hostile.” He noted that Complainant was advised to take managerial training on communication. However, Complainant did not follow instructions to take training. Regarding claim 14, Complainant alleged that on March 1, 2020, Complainant was assigned to Section F. Specifically, Complainant claimed that the Physician Supervisor, Primary Care Mather assigned her to Section F, which had gone years without notes being documented. The Physician Supervisor stated that Complainant was given this assignment because this was the position that opened up as she was about to join Mather. There was no other team for her to take over. For all these claims, beyond her bare assertions, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons for the disputed actions proffered by management witnesses were actually a pretext designed to mask the true discriminatory motivation. Harassment/Hostile Work Environment: Claims 1 - 3 and 15 Complainant has alleged that Agency management created a discriminatory hostile work environment. To prove her harassment claim, Complainant must establish that she 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 her protected bases - in this case, her race, national origin, sex, religion and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, national origin, sex, religion or age. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Regarding claim 1, Complainant asserted that in June and July 2018, management did not provide Complainant assistance to cover for another doctor who was on leave for five weeks, S1 stated that Complainant was hired on August 19, 2018 and she was not in the employ of VA- NCHCS in June and July 2018. S2 explained that S1 arranged for assistance with coverage during the doctor’s leave. She stated that S1 had one of the intermittent staff assist with alerts and other paperwork from the physician’s panel. In addition, S2 stated that two physicians visited the Yuba clinic several times to see the physician’s patients. Moreover, S2 stated that during the relevant period, Complainant left the country due to her mother’s death, between July 1 - July 16, 2018. 2021002079 7 Regarding claim 2, Complainant alleged that since August 2018, management subjected Complainant to numerous inequities compared to male co-workers and co-workers of a different race, S1 explained that Complainant was hired at the Yuba CBOC as of September 2018 in which she was assigned 992 patients while her two bargaining unit reports, Nurse Practitioner (“NP”) (female Asian-Pacific Islander) and named physician (male Indian) had 648 and 1016 patients respectively. However, NP quit in November 2018. After this departure, Complainant had 1184 patients and a named physician had 1340 patients, which shows Complainant to be well under-level compared to her co-worker (named physician) “who had to absorb most of the impact of NP’s departure. In addition, S1 stated that Complainant has been included in a “Physician Lead” email group used to send all notifications including mandatory meetings. According to Administrative staff, Complainant was added to this group when she was hired in late 2018, and there are email responses from her as far back as December 2018. Moreover, to the extent that one of the claimed inequities relates to a disparity in leave usage, S1 asserted that Complainant has never been denied any form of leave including any request for sick leave and “when the leave has been approved, clinic cancellations have been effected per the usual service SOP [Standard Operating Procedure] in a timely fashion.” Regarding claim 3, Complainant alleged that on October 4, 2019, management requested that Complainant conduct an Ongoing Professional Physician Evaluation (OPPE) on two physicians whom she did not know, S1 stated that OPPE’s are a key function of the managing physician role. Complainant was asked to complete the OPPE on a named physician who had worked as an intermittent provider for her at the Yuba Clinic to assist with coverage prior to hiring named physician. Complainant was responsible for the conduct and performance of that provider in her workplace and “she cannot in good faith assert that she did not know or could not rate a BUE under her direct management and supervision.” Further, S1 stated that Complainant was asked to complete an OPPE on a named physician at the McClellan Clinic which she refused to do. He stated that Complainant’s refusal to complete the OPPE was insubordinate and “she asserted she did not want to do it as she was afraid she would generate an EEO complaint from the rated employee…she was advised since there was no evidence these employees were in any way deficient that she would have no cause other than to rate them fully successful, therefore it was inconceivable that an EEO complaint could or would occur so this was not a reasonable assertion as to why she should willfully neglect this performance requirement of her position.” Regarding claim 15, Complainant claimed that on March 6, 2020, Complainant was assigned to a patient panel for which the previous physician had not documented patient information for the preceding five years, the Physician Supervisor, Primary Care stated that he was not aware of deficiencies going back five years. However, he was aware that the predecessor had unsigned notes and paperwork going back a few months. Complainant’s predecessor was given the month of March 2020 to finish all the incomplete work. 2021002079 8 To date, the Physician Supervisor stated that the predecessor “had the same access to all the records and documents as he was put to the task completing the unfinished work so that [Complainant] would not have to do deal with them.” Constructive Demotion: Claim 13 Complainant alleged that on February 3, 2020, due to the discriminatory harassment, she was forced to accept a demotion from a Supervisor Physician to a non-supervisory Physician position effective March 1, 2020. S1 stated that Complainant was not forced to step down. Generally, a forced resignation (whether it results in a discharge or demotion) occurs when an employer deliberately renders an employee’s working conditions so intolerable that the individual is forced to retire from his or her position. Constructive discharge only occurs when the Agency’s actions were taken with the intention of forcing the employee to retire. Three elements must be proven to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant’s position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant’s resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. U.S. Postal Service, EEOC Request No. 05900135 (June 11, 1990). We find that Complainant’s claim of constructive demotion fails because she did not show that any of the conduct at issue was based on her race, national origin, sex, religion or age. As discussed above, we find that Complainant has not established that she was constructively demoted when she accepted a reassignment from the position of Supervisory Physician to a nonsupervisory Physician position. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021002079 9 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002079 10 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. 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 18, 2022 Date