01A06029
02-12-2002
Romualdo R. Rodriguez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Romualdo Rodriguez v. Department of Veterans Affairs
01A06029
February 12, 2002
.
Romualdo R. Rodriguez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A06029
Agency No. 961935
Hearing No. 280-A0-4071X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
(FAD), dated August 16, 2000, concerning his equal employment opportunity
(EEO) complaint of unlawful 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the FAD.
The record reveals that complainant, a Psychiatrist (Physician,
Senior Grade, Step 10), at the agency's Medical Center facility
(agency) in St. Louis, Missouri, filed a formal EEO complaint on July
16, 1996. The Administrative Judge (AJ) set forth in her decision,
which included Findings of Fact and Conclusions of Law, that the
complainant's allegations against the agency were that complainant had
been discriminated against on the bases of his sex (male) and national
origin (Hispanic) when he was:
(1) required to integrate his clinical practice methodologies consistent
with the standard established as acceptable in the delivery of care at
the agency's medical center;
admonished during April 15-May 17, 1996, and summoned to the office of
the administrator and chief psychiatrist and advised that his treatment
schedule was creating problems;
assigned duties during April 15, 1996-May 17, 1996, whereby he was
required to treat patients that were assigned to him as part of a team
concept rather than with the frequency he believed appropriate;
harassed between April 15, 1996-May 17, 1996, when the administrative
director and chief psychiatrist arranged a schedule of patient
appointments for him;
removed on May 17, 1996, for refusing to see patients who had scheduled
appointments with him.
Complainant takes exception to this formulation of the allegations.
In complainant's affidavit, he listed only �National origin-U. S.veteran
and citizen,� as the basis for his complaint. On appeal, complainant
states that the AJ's list of the allegations were the words of the EEOC
investigator, some of which were fabricated from thin air, or were false
representations from the agency representatives. Complainant contends
that his statements have been completely reconstructed to make them look
foolish. In the instant appeal, complainant's claim of discrimination
will be reviewed in light of his insistence that the basis of his
complaint is that he is a United States-born veteran and citizen.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing, finding no discrimination.
ISSUE PRESENTED
Whether complainant established that he was subjected to unlawful
discrimination in violation of Title VII on the basis of his national
origin (United States) for the issues addressed in the AJ's decision.
BACKGROUND
Complainant states that he is a United States-born citizen, a Vietnam
Veteran, and an American trained psychiatrist. Complainant commenced
his employment with the agency on March 16, 1996, and was terminated
on May 17, 1996. Complainant's employment arrangement provided that he
would serve a one year probationary period. Complainant's termination
letter stated that complainant was terminated because of his inability
to successfully integrate his clinical practice methodologies consistent
with the standard established as acceptable in the delivery of care at
the medical center, and that complainant's style of practice failed to
accommodate the needs of all the patients assigned to complainant based
on complainant's scheduling preferences.
The AJ concluded that complainant failed to establish a prima facie
case of national origin (United States) discrimination. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees, not in complainant's protected classes, were
treated differently under similar circumstances, when all psychiatrists,
regardless of their national origin, were subjected to a centralized
scheduling system of new patients and were expected to schedule follow-up
visits on a quarterly basis. The FAD implemented the AJ's decision.
CONTENTIONS ON APPEAL
Complainant contends that his allegation is discrimination against
a United States-born doctor who was refusing to participate in the
neglect of United States-born citizens. Complainant contends that the EEO
investigator and the AJ were �duped� into believing the agency's position;
and that they totally avoided the real and true allegation-that two United
States-born doctors were subjected to punitive scheduling tactics when
they refused to neglect the patients.<1> Complainant states that budget
and economic pressures forced �once every three month� follow-ups with
patients and that the United States-born doctors were set up with punitive
scheduling tactics, such that their workloads were unmanageable. Further,
complainant contends that the agency was hiring a staff of predominantly
�non-citizens� and foreign-born doctors, and forcing out the United
States-born doctors who were providing closer care for the patients.
The agency responds that complainant's appeal brief does not address the
appropriateness of summary judgment, does not address the AJ's finding
that complainant failed to prove a prima facie case of national origin
discrimination, and requests that we affirm the FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant case, complainant may establish a prima facie case of
discrimination based on national origin, by demonstrating that: (1) he is
a member of a protected group; (2) that he suffered an adverse action,
termination, or was denied conditions or benefits of employment, and
(3) that similarly situated employees not in his protected group were
treated more favorably than him, or some other circumstance from which
an inference of discrimination may be drawn
The AJ found that complainant testified that approximately 20 per cent of
the patients he visited needed weekly follow-up visits because they were
unstable or needed adjustments to their medication. Complainant further
testified that he was pressured into seeing patients for only five or ten
minutes, and not give them follow-up regardless of whether they needed
it or not. Complainant testified that United States-born doctors held
more of an obligation to United States veterans. Complainant would
schedule, on his own, weekly follow-up appointments for some patients.
Complainant stated he was informed that his scheduling of weekly follow-up
appointments was creating problems.
Psychiatrist 1, national origin (United States), testified that all
psychiatrists were expected to provide follow-up to patients approximately
every three months. She testified that all psychiatrists had their
schedules arranged for them.
Psychiatrist 2, national origin (Russia), testified that, on average,
patients were scheduled on three month follow-ups. He testified that
he disagreed that United States-born doctors were discriminated against,
because everybody was trying to do their best in the situation, and that
when there were budget cuts, everybody was affected.
Psychiatrist 3, national origin (United States), testified that he
never felt that he was discriminated against on the basis of being a
United States-born physician. He testified that, within the class of
psychiatrists, that they were all treated pretty miserably, but neither
United States-born nor foreign-born psychiatrists had the upper hand.
He testified that all psychiatrists were treated the same.
The Chief of Psychiatry Service (Chief) testified that complainant
scheduled follow-up visits with his patients much more frequently than
other psychiatrists. The Chief testified that psychiatrists were part of
the public sector, the agency had limited funds, and the agency had to
come to some sort of compromise. The Chief stated that all personnel
at the agency were scheduled by centralized scheduling. The Chief
testified that she and others met several times with the complainant
to discuss the difficulties that complainant's scheduling was causing.
She testified that complainant believed he was being asked to compromise
his standard of care. However, she stated she knew the agency's patients
and complainant's assessment of patients would be different from her
assessment of whether follow-up was necessary. The Chief testified that
complainant was terminated during his probationary period because his
practice style was not compatible with the agency and it was creating
undue stress.
We affirm the AJ's finding that complainant did not establish a prima
facie case of discrimination based on national origin. This is
not a case where complainant was disinterested in his patients,
because testimony indicated that complainant was quite conscientious
and concerned about his patients; and that he seemed enthusiastic,
knowledgeable, and interested in the work. As pointed out by the AJ,
this case concerns complainant's belief that he was discriminated
against when he was denied the opportunity to schedule patients with
the frequency he believed appropriate. Complainant's concerns clashed
with the agency's budget and scheduling policy- if all psychiatrists
scheduled follow-up visits with the frequency complainant scheduled them,
there would not be enough psychiatrists' time to see all of the patients.
This standard of care issue cannot be resolved in this case.
The AJ found that all psychiatrists, regardless of their national origin,
were subject to a centralized scheduling system for new patients and were
expected to schedule follow-up visits on a quarterly basis. Although
complainant and the agency differed in their understanding of a �team�
approach to helping patients, and whether it existed, there was testimony
that there were other health care professionals for more frequent
follow-up care of patients. Further, the AJ found that complainant's
contention, that evidence of disparate treatment could be seen from the
treatment of the complainant in Wakefield, was without merit because
she was subjected to a schedule different from all of her counterparts.
Complainant failed to prove element (3) of a prima facie case, in that
similarly situated employees not in his protected group were not treated
more favorably than him. All psychiatrists were treated the same.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must 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 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.
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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 12, 2002
Date
1 While the Commission is concerned as to
the anonymity of coworkers, the other doctor's claim is reported in
Wakefield v. Department of Veterans Affairs, EEOC Appeal No. 01974411.
In Wakefield, the complainant, sex (female), nation origin (United
States), retired from the agency in March 1996 and was found by the
AJ in the instant case not to be employed during the time period
in question. The gravamen of the Wakefield complainant's claim was
whether she was discriminated against on the basis of her disability
and whether the agency treated her unlawfully because of her impairment.
The Commission found that the agency subjected the Wakefield complainant
to discrimination when she was assigned a twenty minute, non-variable
clinic profile, upon her return to work, following a medical leave
of absence. In the instant case, the AJ determined that the scheduling
problem at issue in Wakefield, supra, had no bearing on the scheduling
issue in complainant's case.