Charlie O.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 28, 2017

0120143213 (E.E.O.C. Feb. 28, 2017)

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

Charlie O.,1
Complainant,

v.

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

Appeal No. 0120143213
Agency No. 200H-0757-2013103446

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 20,
2014, finding no discrimination with regard to his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

The record indicates that Complainant filed his complaint on September 19, 2013, which was
later amended. The Agency, undisputed by Complainant, framed the claims as follows:

(1) He alleged discrimination based on national origin (Chinese), disability, and in reprisal
for prior EEO activity when he was subjected to disparate treatment with respect to
management taking the following actions:

(a) suspending his clinical privileges and placing him on administrative leave in
connection with a proposed 12-day suspension on July 22, 2013;

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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(b) placing him on both a Focused Professional Practice Evaluation (FPPE) and a
Performance Improvement Plan (PIP) on September 3, 2013;

(c) giving him a negative employment reference, which “might” have resulted in him
not being hired to fill a vacancy at another VA facility on or about October 16,
2013; and

(d) issuing him a proficiency report with a rating of “Unsatisfactory” on January 16,
2014.

(2) He alleged discrimination in reprisal for prior EEO activity when on January 15, 2014,
he was subjected to disparate treatment with respect to management giving him a letter
stating that if he fails to provide evidence of his reappointment and update his
credentials by January 17, 2014, his clinical privileges will expire, which may result in
disciplinary action up to and including removal from employment.

(3) He alleged discrimination based on disability when on January 17, 2014, management
denied his request for a reasonable accommodation.

(4) He alleged discrimination based on national origin (Chinese), disability, and in reprisal
for prior EEO activity when between July 22, 2013, and January 17, 2014, he was
subjected to seven incidents of hostile work environment harassment.

(5) He alleged discrimination based on national origin (Chinese), disability, and in reprisal
for prior EEO activity when effective January 17, 2014, he was constructively
discharged with respect to his forced resignation due to hostile work environment
harassment.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to
rebut.

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 (EEO MD-110), Chap. 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").
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The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed as a Primary Care Physician, GS-15, at the Agency’s Chalmers P. Wylie VA
Ambulatory Care Center (VAACC) in Columbus, Ohio. Complainant claimed that he had
anxiety adjustment disorder due to harassment from management and as a result, he had
difficulties with sleeping, eating, and performing the duties of his position.

With regard to claim (1)(a), Complainant’s supervisor (S1) indicated that during the relevant
time period, S1 received a complaint from Complainant’s patient. Specifically, on May 6,
2013, an identified patient complained about Complainant that he only looked at the patient’s
ears, eyes, and mouth and did not examine the patient. After the receipt of the complaint,
stated S1, S1 reviewed nine other patient records including interviews of the patients and saw
discrepancies between the exam recorded and the exam remembered by the patient. S1 also
indicated that Complainant had an excessive number of patient complaints recorded through the
Patient Advocate Tracking System and his complaints this fiscal year to date and last year
exceeded the average for his peers by a large margin. S1 stated that on September, 2012,
Complainant failed to diagnose a patient properly and as a result the patient was later sent to
the urgent care center for admission.

On June 7, 2013, stated S1, S1 met with Complainant to discuss about how he examined his
patients. After the discussion, S1 had concerns about the inadequacy of Complainant’s
physical examinations, his improper documentation, his lack of security for patient documents,
his excessive patient complaints, and his poor medical decision making. Based on the
foregoing, S1 found Complainant’s performance below the acceptable standard of care. Thus,
in a letter dated July 19, 2013, S1 recommended to Complainant’s second level supervisor (S2)
that Complainant be summarily suspended given the seriousness of the foregoing matters and
the risk for patient safety.

In a letter dated July 22, 2013, an Acting Director of the facility, considering S1’s
recommendation, notified Complainant that his privileges were summarily suspended effective
July 22, 2013, pending a comprehensive review of the foregoing allegations, described in S1’s
June 19, 2013 letter. Therein, Complainant was also notified that he would be removed from
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patient care and placed on administrative leave during the comprehensive review which would
be accomplished within 30 calendar days of the suspension.

After a comprehensive review, on August 16, 2013, the Professional Standards Board found
that there was insufficient evidence to support the suspension of Complainant’s clinical
privileges. However, the Board found some concerns regarding: Complainant’s failure to
respond to patient documents in a timely manner; excessive Patient Advocate Tracking System
complaints against him in comparison to other Primary Care Providers at the facility; and his
poor medical decision making on the incident described by S1. In conclusion, the Board
recommended Complainant’s clinical privileges be reinstated with intensive oversight by both
S2 and S1. Complainant’s July 22, 2013 summary suspension was thus rescinded and his
clinical privileges restored. Complainant acknowledges this. We find that the Agency’s
reasons for its actions in claim (1)(a) were legitimate and nondiscriminatory and we find no
discriminatory intent.

With regard to claim (1)(b), management indicated that based on the Board’s findings as noted
above, including the Credentialing and Privileging Committee’s recommendation, Complainant
was placed on the FPPE and PIP at issue to determine whether he was capable of providing an
acceptable level of care of his patients with respect to administering physical examinations and
accuracy of his documentation in the medical record, his clinical decision making, and his
medical knowledge. After a review of the record, we find that Complainant failed to show that
there were any similarly situated employees not in his protected groups who were treated
differently under similar circumstances.

With regard to claim (1)(c), S2 indicated that during the relevant time period at issue, the
Chief of Staff from another facility (the VA Medical Center in Chillicothe, Ohio) called S2,
informed S2 that Complainant was in the process of applying for a position at that facility,
informed S2 that he heard Complainant had been suspended, and asked S2 what the situation
was about. In response, S2 told the Chief that although Complainant was temporarily
suspended from his clinical privileges, he had been reinstated and he was currently on an
FPPE. We find no evidence that the information provided by S2 to the Chief was anything
other than accurate or that S2 acted in a discriminatory manner.

With regard to claim (1)(d), S1 indicated that he rated Complainant’s performance as
“Unsatisfactory” due to his failure to demonstrate fully satisfactory performance as described
earlier in this decision, including his unpredictable attendance and his lack of documenting
accurate notes. We find that Complainant has not shown that he was treated differently than
similarly situated persons with regard to his performance rating or that the rating was
motivated by discrimination.

With regard to claim (2), a Facility Director indicated that during the relevant time period at
issue, he issued Complainant the letter at issue merely to remind him that he had not yet
completed the necessary paperwork for renewing his clinical privileges, which were to expire
on January 18, 2014, and apprised him of the consequences for not doing so. Specifically, the
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Facility Director indicated that all physicians, including Complainant, at the facility were
reappointed every two years and part of the process entailed providing documentation of
updated credentials for the renewal of clinical privileges, which were required for the practice
of medicine at the facility. Complainant does not dispute this. We find that the Agency has set
forth a legitimate, nondiscriminatory reason for issuing the letter which Complainant has not
rebutted.

With regard to claim (3), an Employee and Labor Relations Specialist acknowledged denying
Complainant’s request to be assigned to non-patient care duties. The Specialist indicated that
during the relevant time period, she had numerous interactions with Complainant about
accommodating him but the only medical documentation she received from his medical
provider was that he could not see patients at the facility. The Specialist stated that
Complainant’s request was denied because the clinical/patient care duties were the essential
functions of his position as a Primary Care Physician. Complainant does not dispute this. The
record indicates that on November 3, 2013, Complainant requested that he be assigned to non-
patient care duties due to his medical condition; and on December 19, 2013, he also indicated
that the possible options should also include light duty, sick leave, or transfer to new position.
The record also indicates that Complainant submitted his doctor’s letter dated December 18,
2013, indicating that he was suffering from an adjustment disorder with anxiety which could
impair his ability to serve his patients safely and ethically and his doctor recommended he take
leave from his clinical duties to allow time to recover and not return to clinical work prior to
January 20, 2014. Complainant also submitted another letter dated January 16, 2014, from the
same doctor indicating that due to his medical conditions, he be allowed to continue his leave
of absence from his clinical duties and not return to clinical work prior to February 13, 2014.

On January 17, 2014, the Agency denied Complainant’s request for an accommodation. The
Agency’s January 17, 2014 denial explained that the request was being denied because
Complainant did not have a disability, the accommodation requested would require removal of
an essential function of the job, and the medical documentation was inadequate. We note that
Complainant’s identified disability, anxiety, appeared to be temporary and that medical
documentation did not indicate it was anything other than temporary. An essential function of
Complainant’s position, unrebutted by Complainant, was to care for patients in a clinical
setting. Complainant’s accommodation request, if granted, would require removal of that
essential function from Complainant’s position. An accommodation is not reasonable if it
requires removal of an essential function of the position. Complainant, we note, never put in a
leave request that was denied. Furthermore, it is unclear, if Complainant’s identified disability
was anything other than temporary, how leave in this particular circumstance would ultimately
allow him upon return to perform the essential functions of his position since it was that
precise work environment he would be returning to (clinical setting) that purportedly caused
the anxiety/stress at issue. Nor has Complainant indicated that there was some other position to
which he could have been transferred. After a review of the record, we find that the Agency
did not wrongfully deny Complainant’s request for a reasonable accommodation.

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With regard to claims (4) and (5), the record indicates that on January 17, 2014, Complainant
wrote a letter to S2 that he will be leaving his position on January 17, 2014. The Facility
Director indicated that if Complainant could not renew his clinical privileges which were to
expire on January 18, 2014, he could not practice medicine. Management indicated that they
wanted to help Complainant improve and wanted him to come back to work and successfully
complete his FPPE.

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore,
the Commission finds that Complainant has not established that he was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 request or opposition must also include proof of service on the other
party.

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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. 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

February 28, 2017
Date