Annev.Phillip, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 25, 2005
07a50024 (E.E.O.C. Mar. 25, 2005)

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