07a50024
03-25-2005
Anne V. Phillip, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Anne V. Phillip v. Department of Veterans Affairs
07A50024
March 25, 2005
.
Anne V. Phillip,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A50024
Agency No. 2003-0549-2002104759
Hearing No. 310-2004-0076X
DECISION
The agency filed an appeal to the Commission after an EEOC Administrative
Judge (AJ) issued an Order finding discrimination on the instant
complaint. Complainant alleged discrimination on the bases of race
(Asian), color (brown), and national origin (Asian-American) when: (1)
she was issued a written letter of counseling concerning �VA policies
regarding leave and the appropriate use of leave� on or about August 29,
2002; and (2) on or about April 25, 2003, she received a letter advising
her that her temporary appointment as a physician would be terminated at
the close of business on May 9, 2003. After an investigation, complainant
requested a hearing before an AJ. The AJ, after a hearing, issued a
decision on September 30, 2004, finding discrimination. The agency, on
November 18, 2004, issued a decision not to implement the AJ's decision
and filed the instant appeal.
During the relevant time in question, complainant was working on a yearly
contractual basis in a temporary full time appointment as a physician in
the General Internal Medicine/Ambulatory Care Unit. The record indicates
that complainant was scheduled for annual leave from August 16, 2002
through August 20, 2002. However, she was informed that the clinic
was short staffed and agreed to come in August 16, 2002 through August
19, 2002. Complainant reported to work on August 16, 17 and 18, 2002.
However, complainant became ill the evening of August 18, 2002, went
to the doctor and did not report to work on August 19, 2002. On August
29, 2002, complainant received written counseling for inappropriate use
of leave. On April 25, 2003, complainant received a termination letter
effective May 9, 2003.
The AJ issued the September 30, 2004 decision finding discrimination
on the bases of race, color and national origin on both claims.
Specifically, the AJ found that complainant has shown, by a
preponderance of the evidence, that the agency's reasons were pretext
for discrimination. The AJ ordered the following remedy:
Complainant is entitled to receive back pay, with interest thereon, which
reflects the amount she would have earned but for the discrimination.
The back pay period is April 25, 2003 until the present. Of course,
mitigation is a part of any back pay calculations as is the inclusion
of any fringe benefits lost.
The disciplinary letters and/or letters of counseling and warning issued
to the Complainant should be removed from her file.
Complainant is entitled to reinstatement to her position. This is to
be completed no later than sixty (60) calendar days after the date this
decision or any appellate decision becomes final, whichever is later.
[The agency] shall post the attached notice (after being signed by a duly
authorized representative) at the human resources office responsible for
Complainant and at [the agency's] office of the Disability Services Team
within its Office of Civil Rights and Equal Opportunity. The notice
shall be posted by [the agency] within thirty (30) 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 agency, on November 18, 2004, issued a decision not to implement the
AJ's decision, and ordered interim relief. The agency appealed the
AJ's September 30, 2004 decision finding discrimination. Meanwhile,
complainant filed an appeal from the agency's November 18, 2004 decision
failing to implement the AJ's decision. The agency, on appeal, argues
that the AJ's decision is not supported by substantial evidence. Further,
the agency argues that the remedial relief granted is inappropriate.
The agency contends that complainant failed to establish a prima facie
case of discrimination. The agency argues that even if complainant
established a prima facie case, the agency established a legitimate
non-discriminatory reason for its action which complainant failed to
rebut. Specifically, the agency argues that the agency issued the letter
of counseling due to her failure to follow proper leave procedures on
several occasions. The agency argues that it terminated complainant from
her position due to the quality of patient care that she provided and her
problems with interpersonal interactions with patients and other staff.
Finally, the agency argues that even if the finding of discrimination
was proper, the remedy is improper.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ found that the agency's reason for both disciplining and
terminating complainant were pretextual. The AJ found that other
employees at the clinic came to work while scheduled for annual leave
and were not disciplined. With regard to calling in sick, the AJ
found complainant did call to inform the agency that she was sick and
would not be at work, but could not get through. Further, the record
contains an electronic mail dated August 19, 2002, from the Team Leader
in Clinic which read: �Forgot, [complainant] did call this morning, but
being swamped right off the bat and with the operator forwarding every
tom-dick-and-harry phone call in here just slipped my mind. Sorry. . .�
With regard to the termination, the AJ found that new Chief of Staff, who
terminated complainant, was only there for three weeks. Further, the AJ
found that the Chief of Staff terminated complainant over policies that
other physicians had taken issue with. We note that the Chief of Staff
could not be compelled to testify as she is no longer an agency employee.
The AJ found that the Team Leader in Clinic, who worked with complainant
for over 5 years, did not receive complaints from staff about complainant.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Damages
The agency argues on appeal that the AJ's order to reinstate complainant
is improper. The agency argues that the law only allows a remedy
to make complainant whole by placing complainant in the position she
would have been in but for the discrimination. The agency argues that
complainant's temporary full time appointment was to end on October
10, 2003. Thus, the agency argues that reinstating complainant, at this
point past the end of her appointment, would be giving complainant more
than the law allows. We agree with the agency. The record indicates
that complainant's temporary assignment would have ended on October
10, 2003. Thus, placing complainant in the position would award her
more than the law allows. Complainant is thus only entitled to back
pay ending on October 10, 2003, and is not entitled to reinstatement.
We also find that complainant's termination was effective on May 9, 2003.
Thus, the back pay should begin when effective and not when complainant
received notice. Therefore, the AJ's order will be modified accordingly.
The agency's decision is REVERSED and we REMAND the matter to the agency
to comply with the Order herein.
ORDER
The agency shall take the following actions within 30 days of the date
this decision becomes final:
1. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant for the period beginning
May 9, 2003 until October 10, 2003, pursuant to 29 C.F.R. � 1614.501.
Complainant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due and shall provide relevant information
requested by the agency. If there is a dispute regarding the exact amount
of back pay and/or benefits due, the agency shall issue complainant a
check for the undisputed amount within thirty calendar days of the date
that the agency determines the amount it believes due. Complainant may
petition for enforcement or clarification for the amount in dispute.
All disciplinary letters (including letters of counseling) referencing
the leave matter addressed in this decision issued to the Complainant
shall be removed from her file.
The agency shall provide appropriate EEO training to all responsible
agency officials.
The agency shall consider taking appropriate disciplinary action
against the responsible management official. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
The agency shall post a copy of the attached NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance
with the provision herein entitled POSTING ORDER.
Documentation of compliance with provisions 1 - 5 of this Order must be
sent to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Dallas, Texas Veterans Affairs
Medical Center, General Internal Medicine/Ambulatory Care Unit 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 25, 2005
__________________
Date
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ____________ which found
that a violation of employment discrimination law has occurred at the
agency's Dallas, Texas Veterans Affairs Medical Center, General Internal
Medicine/Ambulatory Care Unit.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against the complainant on
the bases of race, color, and national origin. The facility was ordered
to pay back pay and to remove disciplinary letters from complainant's
personnel file. This facility will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614