01a40738
03-30-2005
Rudranath Talukdar, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Rudranath Talukdar v. Department of Veterans Affairs
01A40738
March 30, 2005
.
Rudranath Talukdar,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40738
Agency No. 200K-0437-2002-103556
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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
reverses the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Staff Physician at the agency's Fargo VA Medical Center facility
(VAMC). Complainant was serving a term appointment which was due to
expire on June 30, 2002, unless the agency renewed the appointment. In
its discretion, the agency could have renewed complainant's appointment
beyond June 30, 2002, in three year increments. On April 23, 2002,
complainant appeared as a witness in an EEO hearing for a coworker and
a week later received notice that his contract would not be renewed. On
August 23, 2002, complainant filed a formal complaint, alleging that
he was discriminated against on the bases of national origin (Indian)
and reprisal for prior EEO activity when in letter dated May1, 2002,
he was informed that his temporary appointment would not be renewed due
to budgetary constraints.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that the complainant had met the initial
burden of establishing a prima facie case of discrimination on both of his
allegations. However, the agency countered complainant's allegations by
articulating budgetary constraints as the legitimate, nondiscriminatory
reason for its nonrenewal of complainant's contract. The agency then
concluded that no discrimination occurred because the complainant had
not established pretext by a preponderance of the evidence.
On appeal, the complainant contends that the agency's proffered
reason of budgetary constraints is pretext for employment
discrimination. Complainant asserts that the agency consistently operates
on a budget deficit and that has never affected hiring before. Moreover,
complainant alleges that the agency advertised for and subsequently
hired several new physicians during the same nexus of time that
his contract was nonrenewed due to a budget deficit. Similarly, the
complainant contends that the agency returned $250,000 in excess funds
to headquarters during the fiscal year he was constructively terminated
for budgetary constraints.
In the absence of direct evidence of discrimination, 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). 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, 120 S.Ct. 2097 (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).
In a national origin claim, complainant may establish a prima facie case
of national origin discrimination by showing that: (1) he was a member
of a protected group, 2) he suffered an adverse employment action, and 3)
a similarly situated employee not in his protected group was treated more
favorably than he was. McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273, 12 FEP Cases 1577 (1976); Scott v. Secretary of Defense,
EEOC Appeal No. 01902727 (September 24, 1990). In the instant case,
the complainant (1) stated that his national origin is India, (2) did
not have his temporary appointment renewed, and (3) identified other
physicians not in his protected class whose temporary appointments were
renewed despite budgetary constraints. Here, we find that the complainant
had established a prima facie case of national origin discrimination
In a reprisal claim, according to the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425
F.Supp. 318 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to claims of reprisal), and Coffman
v. Department of Veteran Affairs, EEOC Request No. 05960473 (November
20, 1997), complainant may establish a prima facie case of reprisal
by showing that: (1) he engaged in protected activity; (2) the agency
was aware of his protected activity; (3) subsequently, he was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. Any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter the
complainant or others from engaging in a protected activity is prohibited.
EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13
(May 20, 1998). See also Whitmire, v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). In the instant case, (1)
complainant testified as a witness in an EEO action on April 23, 2002, (2)
management testified that they were aware of complainant's EEO activity,
(3) complainant's temporary assignment expired and was not renewed, and
(4) complainant received termination letter one week after EEO activity
and he was the only physician whose temporary appointment expired and
was not renewed. Here, we find that the complainant has established a
prima facie case of reprisal discrimination.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), we concur with the
agency's conclusion finding that complainant has established a prima
facie case of national origin and reprisal discrimination. We also
find, contrary to the agency's conclusion, that the agency's reasons
are a pretext for discriminatory animus toward complainant's national
origin and prior EEO activity. In reaching this conclusion, we note
that complainant engaged in prior EEO activity on April 23, 2002,
and barely one week passed before he was issued a nonrenewal letter
dated May 1, 2002. (EEO Counselor's Report, 2). The Commission further
notes that management officials and the VAMC Chief Financial Officer
cannot identify any other physician who has ever been terminated or not
had their appointment renewed for budgetary reasons, even thought the
facility has experienced prior budget crises. (Investigative Summary,
9). Lastly, the Commission notes that the VAMC was under order, and
enforcement proceedings initiated, by the Department of Labor, Wage
and Hour Division to pay $203,000 in back wages to foreign doctors,
including complainant, who were paid significantly less than their
domestic counterparts. (Letter to Senator, NFFE).
We find that the record reflects that the only two physicians terminated
by the agency in 2002 and 2003 were both Indian nationals who engaged
in prior EEO activity. (Investigative Summary, 2). The Commission also
finds that the agency's credibility regarding complainant's nonrenewal
to be severely undermined by prior disparaging remarks made by the
VAMC Director about foreign doctors. (Redding Affidavit, Exhibit B-13,
4-7). Similarly, we find that testimony from other managers regarding
the reason for complainant's nonrenewal to be similarly unpersuasive
inasmuch as Human Resources merely relied upon information that was
relayed to them by the VAMC Director. (Holdcroft Affidavit, Ex. B-5, 3).
In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
a unanimous Supreme Court held that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. In this case, we find,
that complainant has met his burden in establishing that the agency's
articulated reasons for his termination were pretext to disguise national
origin and reprisal discrimination.
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 REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and ORDER below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue within 45 days of the
date this order becomes final. Complainant, through counsel, shall
submit a request for attorney' s fees and costs in accordance with the
Attorney's Fees paragraph set forth below. No later than sixty (30)
days after the agency's receipt of the attorney's fees statement and
supporting affidavit, the agency shall issue a final agency decision
addressing an award of attorney's fees, costs, and compensatory damages.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
2. Consider taking disciplinary action against the subordinate employee
identified as being responsible for the discriminatory harassment
perpetrated against complainant. The agency shall report its decision.
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.
3. The agency will require VAMC Director to take 8 hours of training
in the provisions of Title VII with an emphasis on the prohibition
against reprisal.
4. The agency will post notice in accordance with the Order below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fargo VA Medical Center facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (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
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
March 30, 2005
__________________
Date