01965544
11-23-1998
Rodolfo Bobadilla, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Rodolfo Bobadilla v. Department of Veterans Affairs
01965544
November 23, 1998
Rodolfo Bobadilla, )
Appellant, ) Appeal No. 01965544
) Agency Nos. 92-829
v. ) 93-1628
) Hearing Nos. 340-93-3664X
Togo D. West, Jr., ) 340-93-3670X
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On July 16, 1996, Rodolfo Bobadilla (appellant) initiated an appeal to the
Equal Employment Opportunity Commission (Commission) from a final decision
of the Department of Veterans Affairs (agency) concerning his complaint of
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., �501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The final agency decision was dated June 28, 1996. The appeal is accepted
in accordance with the provisions of EEOC Order No. 960, as amended.
The issue on appeal is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against on the bases of his race
(Asian), national origin (Filipino), religion (Catholic), age (over 40),
disability (back injury), and in reprisal for prior EEO activity when:
1. he was subjected to racial slurs; 2. he was denied the opportunity to
voice his opinion at staff meetings; 3. his leave requests were denied;
4. he was criticized for arriving late at morning staff meetings; 5. he
was criticized for failing to admit a patient; 6. he was not afforded
protection from a dangerous patient; 7. he was not designated Assistant
Chief of the Spinal Cord Injury Service;<1> 8. he was denied reasonable
accommodation; and 9. he was reassigned from his position as head of
the Outpatient Clinic.
The record reveals that appellant, a physician, filed two formal
complaints raising the above-referenced allegations. Appellant asserted
that the Chief of the Spinal Cord Injury Service (Chief) referred to staff
doctors as "Chinese War Lords" during a staff meeting, and referred to
him as "Daniel Ortega" and "Bobo." Appellant stated that the latter term
meant "stupid" in Spanish. Appellant indicated that the Chief refused to
listen to the opinions of the staff physicians, frequently cut him off
during staff meetings, and criticized him for being late for meetings.
Appellant stated that he was denied official leave to attend a medical
conference, and that the Chief did not take action when advised that
a patient threatened to shoot him. Appellant stated that he was not
offered the Assistant Chief position, but that the job was given to a
physician with little experience.
The Chief acknowledged making the three comments cited, but stated that
he likened all of the staff physicians to Chinese Warlords because he felt
they were more concerned with maintaining the status quo than in improving
patient care. The testimony of those present at the meeting supports the
Chief's assertions. In addition, the Chief stated that he did not refer
to appellant as Daniel Ortega, but merely mentioned the recent fall of
Ortega in order to change the subject of the conversation at the time.
Finally, the Chief denied knowing that the term "Bobo" had derogatory
connotations, stating that he merely suggested the name to distinguish
appellant from another doctor, both of whom were referred to as "Dr. B."
Several physicians testified that they had problems getting leave
requests approved, and had to make such requests several months in
advance. In addition, the physicians indicated that the Chief criticized
anyone who was late for a staff meeting. The Chief denied criticizing
appellant for failing to admit a patient, and indicated that he contacted
security regarding another patient's threats. The Chief asserted that
after another staff physician (Asian, Filipino, Catholic, over 40;
Comparative 1) declined the Assistant Chief position, he offered the
job to a physician (Selectee) who had recently finished his residency.
The Chief stated that he wanted an Assistant Chief who was willing to
implement the changes he had proposed, and that appellant was resistant
to change.
According to the record, appellant once served as the primary doctor in
the Outpatient Clinic. In March 1991, the National Director made a site
visit to the facility, and recommended that all physicians rotate through
the wards and the Clinic. The Director also suggested that the Service
adopt a primary care approach. The Chief implemented the recommendations,
and the concept of a permanent Outpatient doctor was abolished. In May
1992, appellant injured his back moving boxes at work. Appellant was
off of work from June 1, 1992, until April 26, 1993, when he returned
with medical restrictions as to bending, standing, walking, pushing,
pulling, and lifting. Appellant's request to be permanently placed back
in the Outpatient Clinic was denied. Appellant was, however, given a
reduced patient load, and the Chief specifically advised the nursing
staff to assist appellant with the moving and positioning of patients.
Appellant asserted that the examining tables in the Clinic were higher
than the beds on the wards and that he was unable to get help moving
patients on the wards. Other physicians, however, testified that help
was always available so that they never moved patients on the wards,
and that there was no difference between the examining tables and the
beds, which could be positioned at different heights.
The agency complied with all procedural and regulatory prerequisites,
and on May 2, 1996, an EEOC Administrative Judge (AJ) issued a recommended
decision finding that appellant had not been subjected to race, national
origin, religious, age, or disability discrimination. The AJ did find,
however, that appellant was discriminated against in reprisal for prior
EEO activity when he was not selected for the Assistant Chief position.
Thereafter, the agency issued a final decision dated June 28, 1996,
rejecting the AJ's finding of reprisal. The agency adopted the AJ's
determinations regarding the remaining issues. It is from this decision
that appellant now appeals.
After a careful review of the record, the Commission finds that the
AJ correctly determined that appellant was not subjected to race,
national origin, religious, age, or disability discrimination with
regard to any of the actions cited. The Commission notes that while
the AJ found that appellant failed to established a prima facie case
because he did not show that he was treated differently than similarly
situated employees, appellant needed only to present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, an independent review of the record reveals no rationale
for overturning the AJ's ultimate finding of no discrimination, given
that appellant did not present persuasive evidence of discrimination
which would give rise to such an inference. While appellant asserted,
on appeal, that the racial slurs cited in allegation 1 created a hostile
work environment, the AJ correctly determined, after finding the Chief's
explanation for the comments credible, that the evidence failed to
support such a finding.
The Commission, however, disagrees with the AJ's determination that
appellant was subjected to reprisal discrimination when he was not
selected for the Assistant Chief position. Rather than concentrating on
the selection for the position at issue in allegation 7, the AJ instead
found that appellant was subjected to reprisal with regard to notes
kept by the Chief. While the evidence may properly have been considered
as background information, the AJ's finding of discrimination is based
entirely upon that issue. As stated, the record shows that appellant did
not support the changes proposed by the Chief. While the Chief stated
that he did not approach appellant regarding the position because he was
"conflict prone," the evidence does not show that the Chief was referring
to a prior EEO complaint in which appellant had been involved. Instead,
the record reveals that appellant and the Chief had a confrontation
several years previously when both were staff physicians, and that
appellant was involved in a confrontation with another physician in which
he grabbed her arm. Further, the record includes several complaints
from patients regarding appellant's demeanor. Finally, it is noted
that the AJ's decision relies almost entirely upon the testimony of the
former Administrative Officer, whose assertions were contradicted by
two physicians. Therefore, the Commission finds that appellant failed
to prove, by a preponderance of the evidence, that he was subjected to
reprisal when he was not selected for the Assistant Chief positions.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
NOV 23, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant's allegations have been consecutively numbered for purposes
of clarity.