Andres M.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160111 (E.E.O.C. Jan. 11, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Andres M.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120160111

Agency No. 2003-0502-2014104980

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the August 27, 2016 final Agency decision (FAD) concerning his
equal employment opportunity (EEO) complaint alleging 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 Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physician at the
Agency’s Lafayette Community-Based Outpatient Clinic, VA Medical Center in Alexandria,
Louisiana. On February 23, 2011, Complainant claimed that he requested leave to attend a
primary care conference to be held in Houston, Texas on March 24 and 25, 2011. Complainant
alleged that he had completed making arrangements to attend the conference when, on March 18,
2011, the Chief of Primary Care informed him that she did not think it was in their best interest
for him to attend the conference. Complainant attended the conference without management
approval and was initially charged as absent without leave (AWOL). Several months later, the
AWOL was changed and Complainant was paid for the days he was absent.

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.
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On August 18, 2011, Complainant alleged that the Acting Chief subjected him to a fact-finding
investigation after the Psychiatrist accused Complainant of putting him in danger by including
his personal contact information in a clinical note. Complainant stated that the Agency used
computerized notes to record patient data and no one can get into the computer to read them
unless they have a password. Further, Complainant explained that he included the Psychiatrist’s
telephone number in his note because he did not want the patient to fall through the cracks and
not receive good service. Following the fact-finding investigation, Complainant received a
written reprimand for violating Agency policy. Complainant claimed that management failed to
remove the reprimand from his Official Personnel Folder (OPF).

In 2013, Complainant claimed that he noticed that other physicians were talking about their
performance pay and they asked him what he had received. Complainant alleged that he had not
received any performance pay and when he inquired, he was told there was paperwork that he
needed to sign before he could be paid. Complainant claimed that no one had told him that he
needed to sign anything previously. Complainant was provided the proper paperwork and
performance pay several months after other physicians had received theirs.

On August 15, 2014, Complainant claimed that the Medical Records Administration (MRA)
Specialist falsely accused him of administering an HIV test to a patient without that patient’s
approval. Complainant alleged that there was no proof that he had done this and he was not told
the identity of the patient.

On September 30, 2014, Complainant alleged that the Deputy Chief of Staff issued him an
unsatisfactory proficiency report. Complainant claimed that he was rated as “Unsatisfactory” in
“Administrative Competence.” Complainant claimed that it was “crazy” to rate him as such
because he did not have any administrative duties. Complainant stated that he did not supervise
anyone, he was not responsible for planning, made no administrative judgments, and he had no
reporting duties. Complainant claimed that he was there to treat patients.

On August 23, 2014 and September 1, 2014, Complainant alleged that the Deputy Chief of Staff
failed to act on his request for a pay increase. Complainant claimed that he was not given credit
for excellence while a White, part-time physician made more than him. Additionally, on
December 11, 2014, Complainant claimed that management failed to award him with an extra
$2,500 on his performance bonus. Complainant alleged that he could have received as much as
$10,000 in performance pay, but he only received $5,000. Complainant believed that this was
the result of the Deputy Chief of Staff not applying general mathematics and rounding up to the
next number which would have raised his bonus to $7,500.

On December 19, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the basis of race
(African-American) when:

1. On March 21, 2011, the Chief of Primary Care, denied Complainant’s leave
request to attend a conference from March 24 - 25, 2011;
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2. On August 8, 2011, the Acting Chief, subjected Complainant to a fact-finding
investigation after the Psychiatrist accused Complainant of putting him in danger
by including his telephone number on a clinical note;

3. Beginning August 2011 to present, management failed to remove information
regarding the fact-finding investigation from Complainant’s Official Personnel
Folder (OPF);

4. In 2013, the Deputy Chief of Staff, delayed paying Complainant’s performance
pay for an unspecified period of time;

5. On August 15, 2014, an Acting Chief falsely accused complainant of
administering a HIV test on a patient without their permission;

6. On August 23, 2014 and September 1, 2014, the Deputy Chief of Staff failed to
act on Complainant’s request for a pay increase;

7. On September 30, 2014, the Deputy Chief of Staff issued Complainant an
unsatisfactory rating on his proficiency report; and

8. On December 11, 2014, management failed to award complainant with an extra
$2,500 on his performance bonus.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on discriminatory animus. Specifically, as to claim
(1), the Chief stated that office policy required that no more than half the staff could be absent at
any time. The Chief affirmed that the Chief Medical Officer had allowed too many physicians to
take leave during the time frame at issue; therefore, she had to deny Complainant’s leave request
as it was the last one that was submitted. With respect to claims (2) and (3), the Chief explained
that the Acting Chief initiated a fact-finding investigation that ultimately resulted in Complainant
receiving a letter of counseling for violating Agency policy. The record revealed that
Complainant had placed the Psychiatrist’s phone number into the patient’s medical record and
then ignored a direct order to remove the information. As a result, Complainant received a
written counseling. The counseling was to be removed from Complainant’s OPF, and Human
Resources employees found no references of it at the time of the investigation.

2 Complainant withdrew one additional claim during the investigation.
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As to claim (4), the Deputy Chief of Staff stated that in 2013 through May 2014, he was also the
Acting Chief. The Deputy Chief of Staff confirmed that physicians received their performance
pay information, signed it if they agreed with it, and then were paid.

Regarding claim (5), the MRA Specialist explained that she was responsible for monitoring HIV
test results. The MRA Specialist stated that she noticed that the HIV test results for some of
Complainant’s patients did not have documentation to show that the patients had given their
verbal consent for the test to be administered. The MRA Specialist asserted that she emailed
Complainant the results of her review, but he did not respond. The MRA Specialist maintained
that she followed the same procedure with any physicians who had given the test to patients
without documenting their consent.

As to claim (6), the Deputy Chief of Staff explained that physicians’ pay is reevaluated every
two years according to market pay procedures and years of service. Within days of notice of
Complainant’s dissatisfaction, the Deputy Chief of Staff convened a pay panel. Following that
process and an in-depth review of Complainant’s salary, the panel ultimately set Complainant’s
pay at $198,000, in excess of the most recent salary set for the identified comparator. The
Deputy Chief of Staff noted that since the comparator was a part-time employee, his salary was
pro-rated for the days he actually worked.

Regarding claim (7), the Deputy Chief of Staff affirmed that the administrative rating for all
physicians’ evaluations was based on the objective findings of the Veterans Health
Administrative Support Service Center (VSSC). The Deputy Chief of Staff explained that those
ratings concerned how a physician manages his clinic, how often he brings patients into the
clinic, how often he evaluates urine drug screens, the timelines of the physician’s note-writing,
and whether he clears alerts sent to him during the course of the week. The Deputy Chief of
Staff stated that a physician must meet or exceed the numbers in the various VSSC categories to
avoid receiving an Unsatisfactory rating in administrative duties. The VSSC indicated that
Complainant had failed to meet all of the categories and thus earned an Unsatisfactory rating for
that element. The Deputy Chief of Staff noted that Complainant was not an unsatisfactory
physician and that he had rated Complainant as “High Satisfactory” for the performance year.

Finally, as to claim (8), management explained that the Agency utilized computer-generated
metrics for the administrative element in Complainant’s performance plan. A physician receives
25 percent of a possible $10,000 for each of the four categories that are successfully completed.
In Complainant’s case, he only satisfactorily completed two out of the four categories, and was
unsatisfactory in his enlisting patients into the Telehealth program. Complainant enlisted 1.5
percent and thus missed the 1.6 percent objective metric as set by the VSSC. The Deputy Chief
of Staff stated that management was not permitted to “round up” the 1.5 to 1.6 percent. The
Deputy Chief of Staff affirmed that Complainant’s completion rate placed him with the majority
of Agency physicians, and they received the same $5,000 bonus.

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The Agency concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency reached a wrong decision and he is compelled
to pursue justice for what he feels is blatant racism. Complainant claims that he was paid less
than a White peer whose work was appallingly inferior. Complainant argues that management’s
reasons for its actions were not supported by the record. Accordingly, Complainant requests that
the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he 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 his race. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Even assuming that the alleged conduct was sufficiently
severe or pervasive to create a hostile work environment, the Commission finds that
Complainant failed to show that the Agency’s actions were based on discriminatory animus. For
example, as to claim (1), the Chief affirmed that she denied Complainant’s leave request because
the Chief Medical Officer had allowed too many providers to take leave on the day in question
which left the clinic without appropriate coverage. ROI, at 183. Complainant was charged with
AWOL after he failed to report to work and went to the conference without permission. Id. at
126, 184. Complainant confirmed that the AWOL was later changed and he was paid for the
days he was absent. Id. at 128.
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With respect to claims (2) and (3), the Chair confirmed that a fact-finding investigation was
conducted following Complainant’s violation of Agency policy. ROI, at 185. The Chair stated
that Complainant noted the Psychiatrist’s personal contact information (home and cell phone
number) in the patient’s electronic medical record. Id. at 185, 311. Complainant further ignored
a direct order to amend the record. Id. at 312. As a result, Complainant received a letter of
reprimand. Id. at 185, 417. An HR Official reported that there was no evidence of any
documentation from the fact-finding investigation remaining in his OPF. Id. at 510.

Regarding claim (4), the Deputy Chief of Staff affirmed that physicians were presented with
information about their performance pay, signed it if they agreed with it, and then were paid
accordingly. ROI, at 194-95. The Deputy Chief of Staff explained the process and noted that it
was not uncommon for there to be delays in physicians receiving their performance pay, e.g.
payment for Fiscal Year 2013 occurring in March or April 2014. Id. at 194-95. The record
indicates that Complainant signed his performance pay paperwork in May 2013, and it was
approved and paid out in March 2014. Id. at 458.

With respect to claim (5), the MRA Specialist asserted that she monitored HIV test results and
was required to ensure that there was documented patient consent. ROI, at 228. The MRA
Specialist confirmed that she discovered a number of Complainant’s patients had HIV test results
without documented consent. Id. The MRA Specialist stated that she sent an email to
Complainant informing him of the findings, but he did not respond. Id.

As to claim (6), the Deputy Chief of Staff explained that physicians are reevaluated every two
years according to their market pay and years of tenure at the facility. ROI, at 202. The Deputy
Chief of Staff confirmed that he convened a pay panel to evaluate Complainant’s market pay. Id.
at 202-03. A pay panel was convened on February 12, 2015, and reviewed Complainant’s
qualifications including his training and degree; his level of expertise and length of time in his
particular field, and his privileges and board certification. Id. at 236. The panel decided that
Complainant was entitled to an increase and raised his salary to $198,000. Id. at 239. The
Acting Chair denied that Complainant was paid significantly less than the identified comparator.
Id. at 243. The Acting Chair confirmed that the identified physician’s salary was based on a
$195,400 salary; however, the Agency pro-rated his salary because he only worked at the facility
three out of five days. Id.

Regarding claim (7), the Deputy Chief of Staff stated that Complainant’s proficiency report was
based on the objective findings of the VSSC. ROI, at 209. The Deputy Chief of Staff explained
that the administrative competence element addressed such things as how a physician managed
the clinic, how often the physician brought in patients, how often a physician evaluated urine
drug screens, and how often a physician cleared alerts. Id. at 210-11. A physician was graded
from one to five in each category and if the physician was rated less than the average, that
physician would be considered “Unsatisfactory” in that category. Id. at 212. Complainant
received an “Unsatisfactory” in the Administrative Competence element; however, he received a
“High Satisfactory” overall rating. Id. at 447.
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Finally, as to claim (8), the Deputy Chief of Staff stated that there were four parts to
Complainant’s performance plan equaling 25 percent of the maximum performance bonus of
$10,000. ROI, at 200. Complainant met the first two goals that made him eligible to receive
$5,000. Id. A third goal included enrollment of 1.6 percent of patients into Telehealth.
Complainant achieved 1.5 percent and believed that it should have been rounded up. Id. at 199.
The Deputy Chief of Staff confirmed that it was an objective measure from the VSSC and
management was not allowed to round up scores. Id. at 196. As a result, Complainant met two
of the four goals of the performance plan and received a $5,000 bonus. Id. at 200.

The Commission concludes that Complainant has not shown that he was subjected to a
discriminatory hostile work environment. Moreover, to the extent Complainant claims that he
was subjected to disparate treatment, the Commission finds that, as discussed above,
Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for
discrimination. As a result, the Commission finds that Complainant was not subjected to
discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to 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 (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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),
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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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

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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

January 11, 2018
Date