Beth G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019003577 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003577 Hearing No. 450-2017-00108X Agency No. 2003-0549-2014103146 DECISION Complainant filed a timely appeal, pursuant to C.F.R. § 1614.403, from the February 21, 2019 decision of the Equal Employment Opportunity Commission (Commission or EEOC) Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND During the relevant period, Complainant applied for a Nurse Practitioner position with CR Associates, Inc. (“CRA”), a staffing firm which contracted with the Agency to provide health care resources at the VA North Texas Veterans Healthcare System, Community-Based Outpatient Clinic (CBOC) in Bridgeport, Texas. 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. 2 As the Agency did not issue a final order within 40 days of receipt of the AJ’s decision, the decision of the AJ became the final action of the Agency. 29 § C.F.R. 1614.109(i). 2019003577 2 On June 16, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability3 when, on March 26, 2014, she was notified that her credentialing process was ceased and her Nurse Practitioner application was revoked.4 After its investigation into the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Both parties submitted motions for summary judgment to the AJ. The AJ subsequently issued a decision by summary judgment in favor of the Agency and denied Complainant’s motion. As already noted, the Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. It is from this decision that Complainant appeals. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 3 Complainant identified her disabilities as osteoarthritis, thoracic outlet syndrome arterial, shoulder impingement syndrome, SI joint instability, lymphedema, cervicogenic headaches, and chronic pain. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 4 On August 13, 2014, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim, finding that Complainant was an independent contractor. On appeal, the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120143174 (May 6, 2016). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq., which is now the subject of the instant appeal. 2019003577 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. The AJ found that Complainant was referred for a “locum”5 Nurse Practitioner assignment to staff the Agency’s Bridgeport CBOC. Officials from CRA, the staffing firm, said Complainant was referred to CRA from a third-party locum company. They interviewed Complainant and collected information from her and sent it to the Agency to start the credentialing process. The CRA officials who interviewed and referred Complainant to staff the Agency denied any knowledge of Complainant’s disabilities. The referral was received by the Agency’s Program Manager for the Clinic and Health System Credentialing Specialist (Specialist), who also testified they were not aware that Complainant had a disability. On February 28, 2014, Complainant was sent an email notification from the Specialist that the Agency had received a request to credential her. Specifically, the Specialist informed Complainant of the need to complete the VetPro file and return all the required documents no later than March 7, 2014, in order to process her credentials. The required documents for the credentialing process included, but were not limited to, a scope of practice, case specific liability claims information, credentialing release of information authorization form, declaration of health, a copy of all licenses and certifications, a copy of a current U.S. photo identification card, a copy of current Drug Enforcement Administration (DEA) certificate, a copy of current Texas Controlled Substance (DPS) certificate, a copy of current clinical privileges held at other institutions; a copy of Advanced Cardiac Life Support certificate, a copy of Basic Life Support (BLS) certificate, and proof of any liability insurance. VetPro is an internet-based data bank for credentialing VHA health care practitioners that facilitates completion of a uniform, accurate, and complete credentials file. On March 3, 2014, Complainant submitted some of her required VetPro information. However, Complainant did not submit all the required documentation for her credentials to be processed. Specifically, she did not submit the declaration of health form and the scope of practice form. On or about March 26, 2014, Complainant’s credentialing process was ceased for failure to provide all the required documentation for processing. 5 “Locum” positions are usually temporary and can be as short as one day in duration or up to one year. 2019003577 4 Based on this evidence, the AJ concluded that Complainant failed to show that there was any intent on behalf of the Agency to cease processing her credentialing due to her disabilities because no one had any knowledge of a disability. The AJ determined that Agency management articulated legitimate, non-discriminatory reason for ceasing Complainant’s credentialing process. Specifically, the AJ stated that for a Nurse Practitioner, part of the application process is to be credentialed and provided clinical privileges to treat the veteran patients. She noted that credentialing refers to the systematic process of screening and evaluating qualifications and other credentials, including, but not limited to the following: licensure, required education, relevant training and experience, and current competence and health status. The AJ further noted that all applicants requesting VA credentialing and privileges are required to submit all of the required documentation as stated above. The AJ stated that if any applicant refuses to provide the required documentation, the credentialing and privileging process ceased as incomplete. Finally, the AJ determined “it is undisputed that Complainant failed to submit two of the requested documents, a scope of practice form and a declaration of health form. As a result of this failure, the credentialing process was ceased from further processing and her application was revoked.” Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the AJ’s decision without a hearing finding no discrimination, in the absence of the issuance of a final order by the Agency. 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. 2019003577 5 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), 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. The court has the sole discretion to grant or deny these types of requests. 2019003577 6 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 August 4, 2020 Date