Rodrigo C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 20, 20160120141393 (E.E.O.C. Apr. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rodrigo C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141393 Agency No. 200P-0605-2012100442 DECISION Complainant filed an appeal from the Agency’s January 15, 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, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo. 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 Staff Physician/Module Leader in the General Internal Medicine Section at the Agency’s work facility in Loma Linda, California. On December 11, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the basis of reprisal for his prior protected EEO activity under Title VII when concerning his assignment of duties and patient workload, on September 24, 2012, and continuing, management failed to adjust his patient panel count to account for time spent on inpatients or ward rotation. Complainant claimed that the correct panel size for him to handle in light of his other obligations should be 295-300 instead of the current 396. 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. 0120141393 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. The Agency stated that all physician time must be mapped to Patient Care, Administration, Education, or Research. According to the Agency, time spent by a physician in direct patient care activities forms the full time equivalent (FTE) employee component of the physician productivity measure. The Agency stated that the number of services a physician can deliver and the number of patients a physician can be accountable for is commonly referred to as panel size. The Agency stated that on April 5, 2012, the Chief, Medical Service, Complainant’s second level Supervisor, informed Complainant that his current clinic time was being reduced from six to three half days and that his panel size would be calculated on three half days of clinic time. The Agency explained that on October 4, 2012, the Chief, Medical Service, discussed labor mapping with Complainant and told him that his panel size was calculated based on the full time panel size of 1320 multiplied by his patient care time of 0.30 which resulted in Complainant having a model panel size of 396. The Chief informed Complainant that the same methodology was applied to all physicians in the General Internal Medicine Section. The Agency noted that there had been a settlement of a civil action filed by Complainant that provided for a reduction of Complainant’s “clinic assignment from six one-half days per week to three and have the [Agency] use its best efforts within the next 45 days to utilize the additional non-clinic time for added teaching responsibilities and administrative activities at the University of Loma Linda.” The Chief stated that Complainant’s three days of primary care clinic per week constituted 30% of a FTE. The Agency stated that Complainant has not alleged a breach of the settlement agreement but rather that the same supervisors, who were part of the settled civil action, discriminated against him by failing to decrease the size of his patient panel. Complainant claimed that management used an incorrect base panel size of 1320 rather than 1200. The Agency determined that it articulated a legitimate, nondiscriminatory reason for its actions. According to the Chief, the calculations for determining the 1320 panel size were set at a national level by the National Primary Care Office at the Agency’s Central Office. The Agency stated that on October 4, 2012, the Chief informed Complainant that the mapping data showed that his time was mapped as follows: Inpatient time, Medical MD-Bed Day Care 0.25; Administration, Medicine Administration 0.10; Teaching, Medicine Teaching 0.80; Primary Care, Primary Care Green Team 0.30, and Research, Medicine Research 0.05. The Agency observed that Complainant attempted to establish pretext by claiming that a similarly situated physician was treated more favorably as to the size of his patient panel. The Agency acknowledged that the comparison physician had a different panel size but stated that 0120141393 3 the differences in panel size were attributable to work assignments using a universally applied formula. The Agency maintained that the formula at issue was consistently applied to all General Intern Medicine Section physicians, and each calculation used the same base panel number of 1320. The Agency noted that the reduction of Complainant’s clinic time under the settlement agreement so as to allow greater teaching opportunities required management to recalculate his patient panel. The Agency determined that absent evidence that the calculations used to arrive at Complainant’s panel size were improperly manipulated, it could not conclude that Complainant’s recent EEO activity was the cause of the panel size assigned to Complainant. Thereafter, Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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 facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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). 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. 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). We shall assume arguendo that Complainant has set forth a prima facie case of reprisal with regard to the alleged actions. The Agency explained that Complainant’s panel size was calculated based on the full time panel size of 1320 multiplied by the patient care time of 0.30 which resulted in Complainant having a model panel size of 396. According to the Agency, the same methodology was applied to all physicians in the General Intern Medicine Section. We find that the Agency has articulated a legitimate, nondiscriminatory reason for Complainant’s panel size. 0120141393 4 Complainant attempts to establish pretext by challenging whether the full time panel size of 1320 is accurate. Complainant claims that 1200 should instead be the baseline figure. However, the record indicates that the 1320 panel size was set at a national level to apply to the Loma Linda facility. There has been no persuasive evidence presented to show that any official at Loma Linda influenced those at a national level or manipulated the manner in which Loma Linda would be evaluated so as to adversely impact the size of Complainant’s patient panel. In Complainant’s case, the baseline of 1320 was multiplied by his primary care FTE of 0.30 to arrive at his patient panel size of 396. We discern no retaliatory intent in how the Agency arrived at this figure. We find that Complainant has not presented any contentions that persuasively support his claim of reprisal. CONCLUSION The Agency’s determination that no discrimination occurred is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party. 0120141393 5 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. 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 20, 2016 Date Copy with citationCopy as parenthetical citation