Bruce P.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 8, 2018

0120162519 (E.E.O.C. Aug. 8, 2018)

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

Bruce P.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162519

Agency No. 2004-0512-2015103178

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 30, 2016, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Psychologist, GS-0190-13, at the Agency’s Medical Center in Baltimore,
Maryland. On August 11, 2015, Complainant filed an EEO complaint in which he alleged that his
immediate supervisor, the Chief Psychologist (CP), discriminated against him on the basis of
religion (Christian – Denomination Not Specified) by suspending his clinical privileges on April
22, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested an immediate final decision without a hearing.
IR 13. In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

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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The Agency’s decision found that CP explained that Complainant lost his clinical privileges
because he failed his Focus Professional Practice Evaluation (FPPE) as determined by the
professional Standards Board. Instead of losing his job, Complainant was reassigned to a
nonclinical position with his same pay.

When asked to explain why he was issued a letter of suspension of his clinical privileges on April
22, 2015, Complainant responded that he was participating in a FPPE because he was viewed as
not meeting mandatory deadlines. He averred that he had requested an extension that was denied.
IF 74. The CP confirmed Complainant’s assessment, noting that Complainant had been moved
from Programs to a Laboratory assignment following complaints about him from a patient. The
CP and a Human Resources Specialist assigned to the matter averred that Complainant’s
performance plan called for him to complete 39 patient treatment plans within one year but that he
had only completed four of those plans. The CP further stated that after Complainant failed the
FPPE, his clinical privileges were suspended. IR 85, 89-90, 110-12, 114. Complainant was issued
a notice of proposed removal on August 11, 2015 but that was rescinded on October 14. 2015. IR
116-18. In lieu of losing his job, Complainant was reassigned to a non-clinical position within the
Medical Center without losing any of his pay. IR 90. He admitted to being satisfied with this
resolution. IR 77.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). As a first step, he would typically 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). The
prima facie inquiry may be dispensed in this case, however, since CP articulated legitimate and
nondiscriminatory reasons for suspending Complainant’s clinical privileges, namely that
Complainant had failed the FPPE. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S.
711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13,
1997).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that CP’s
explanation for suspending his clinical privileges is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509
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U.S. 502, 519 (1993); Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995). Pretext can be demonstrated by showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for
its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-
Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

When asked by the EEO investigator why he believed that his religion was the basis for the
suspension of his clinical privileges, Complainant averred that he had proposed to a supervisory
psychologist the possibility of starting a biblical Christian recovery group within the Mental Health
Clinic, and that this supervisor rejected the proposal in a “very visceral,” negative manner. IR 78-
80. Beyond this statement in his affidavit, however, Complainant has presented neither affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that
contradicted the explanation provided by the CP, or which called the CP’s veracity into question.
We therefore agree with the Agency that Complainant has not met his burden of proof to
demonstrate that his religion was a motivating factor in the Agency’s decision to suspend his
privileges as a clinical psychologist.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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), at Chap. 9 § VII.B
(Aug. 5, 2015).
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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

August 8, 2018
Date