0120131966
09-25-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120131966
Hearing No. 430-2009-00353X
Agency No. DON (MC) 08-68093-03141
DECISION
On April 27, 2013, Complainant filed a timely appeal from an Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) decision dated February 14, 2013, which became the Agency's final action after it took no action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.109(i) and .405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed with OMV Medical, Inc. serving as a Clinical Psychologist at the Agency's Deployment Health Clinic, Naval Hospital, Camp LeJeune, North Carolina.1 He filed an EEO complaint alleging that he was discriminated against and subjected to a hostile work environment based on his national origin (Egyptian) and age (69 and 70) when the following incidents occurred:
1. on September 27, 2007, his first line supervisor did not educate the Certified Nurse Assistants (CNAs) on their roles and then or soon thereafter two CNAs made comments that he was not properly trained and was unprofessional;
2. on September 27, 2007, a colleague assigned him to 10 days of on-site screenings while assigning herself only three days of on-site screenings for the month of October;
3. on October 8, 2007, his first line supervisor did not respond to his request that the on-site screenings be divided equitably between psychologists;
4. on October 16, 2007, during an unidentified incident, his first line supervisor sided with the CNAs, making him look unprofessional to his patient;
5. on October 22, 2007, a CNA yelled at him, "We have to be professional around here";
6. on December 6, 2007, during a staff meeting a CNA stated Complainant had made an administrative mistake;
7. on December 7, 2007, his first line supervisor gave him a performance counseling that threatened disciplinary action;
8. on April 25, 2008, he received an email from his first line supervisor that stated the supervisor gave the nurse permission to inform a patient that the patient could request a change in provider;
9. on June 6, 2008, Agency officials warned the staff that the consequences of being tardy would result in a loss of pay while Complainant had already received a loss of pay for approximately 4.5 hours for being tardy on April 14, 2008;
10. on June 17, 2008, the Agency interfered with his Performance Appraisal Review (PAR) process when his first line supervisor presented him a PAR with a page of criticism that was signed prior to Complainant's review and he refused to sign it;
11. on July 8, 2008, he received an email from the Credential Department stating his medical privileges expired on July 9, 2008, and that he could no longer engage in clinical activity until he provided written statements and a signature for the PAR that he received; and
12. on July 16, 2008, OMV Medical, Inc. terminated his contract position as Psychologist assigned to the Agency effective immediately.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, which the AJ denied as a sanction. In EEOC Appeal No. 0120102379 (Mar. 26, 2012), the Commission reversed, and ordered the complaint remanded back to the appropriate EEOC Hearings Unit. Over Complainant's objections, on remand a new AJ granted the Agency's motion for summary judgment. The new AJ found no discrimination.
The AJ found that Complainant's allegations centered on his performance review, pay issues, his interaction with nursing staff, and his work assignments, and the gravamen of his complaint concerned his removal, which stemmed from his failure to maintain medical credentialing requirements.
The AJ found the following. Despite reminders, Complainant declined to sign his PAR, as required, which was part of his credentialing package, and hence on July 9, 2008, his medical privileges expired. He stopped reporting to work on July 9, 2008, and wrote his Agency supervisor that all future correspondence be sent to his home. The above expiration and failure to report resulted in OMV Medical terminating his employment on July 16, 2008. Complainant indicated that he did not oppose the contents of the PAR, but rather the process and procedure of it -- he opposed his Agency supervisor signing the PAR prior to his review and signature thereon, but such action was not prohibited.
On or about June 30, 2008, Complainant did submit a response to the PAR with a person involved in credentialing. He did not contest the accuracy of the very negative peer review by a psychologist of his work, the heart of the PAR which was mainly based on a review of his medical notes, but instead argued he did not learn of the ongoing reviews timely because of problems with the Peer Plus computer program. He also took issue with his supervisor, in an addendum to the PAR, citing numerous patients requesting a change in providers (COP) from him. Counselor's Report (enclosure), at 31, 32. But at the transcribed EEO investigative fact finding conference, Complainant stated he never cared about the content of the PAR, and was not unhappy with its content, rather he opposed the procedure. Transcript, at 81.
The AJ found that Complainant's peer psychologist reviewed 25 of his cases and determined that 12 were deficient and four compromised patient care -- insufficient patient records made by Complainant, and diagnoses not always connected with or supported by the records which sometimes comprised patient care. The AJ found that a second opinion psychologist supported the peer psychologist review. The second opinion psychologist reviewed a subset of the cases the peer psychologist reviewed, and agreed that the quality of patient records made by Complainant was deficient.
Regarding COP, the AJ observed that the Deployment Health Clinic Patient Rights and Responsibilities sheet provided that patients have a right to request a COP. There were more COP requests away from Complainant than all other providers combined. In questioning the motivation of patients, Complainant pointed to the COP forms. Three pointed to his ethnicity as the reason patients made COP requests - one writing s/he had a hard time trying to concentrate "through his accent," another that he could not understand Complainant well and he brought back bad memories, and a third cited "ethnicity." But far more complained about the quality of Complainant's care, which is consistent with the peer review on his PAR. In mentioning COP in his addendum to the PAR, Complainant's supervisor wrote that while the reasons therefore varied, far too often the reason was negative attributions toward his patient care, attitude and actions. A review of COPs shows this included repeated complaints Complainant did not want to listen, his spacing out return visits too far apart, being unavailable, repeatedly canceling visits, not returning phone calls, not getting anything out of the visits, and his refusal to renew medication on short notice. ROI, Exh. F-10. We don't see how the addendum referred to the referenced reasons by the above three patients.
Regarding issue 9, the AJ found that while Complainant's time sheet (March 30 - April 12, 2008) reflected he worked 80 hours, his actual sign in sheets reflected he worked fewer hours, resulting in a 4.5 hour cut in pay. Complainant did not dispute his inaccuracy and contended everyone did the same thing - he pointed to sign in/out sheets for the same period in the record and noted others were tardy. The AJ found Complainant did not identify employees who were treated differently. Complainant does not contend that during the pay period in question, or another pay period, that anyone claimed credit for so many hours that they did not work (it was 5.36 hours). Counselor's Report enclosure, 127 - 128.
Regarding CNAs, the AJ found that Complainant believed they should not have the authority to speak to him in the manner alleged or with such authority. Complainant suggested he did not believe the CNAs were discriminating against him based on his national origin or age. Transcript, 61 - 62.
On incidents 2 and 3, the AJ found that at the time, Complainant had a lower caseload.
In granting the motion for summary judgment, the AJ found that there were no genuine issues of material fact. Regarding Complainant's disparate treatment claims, the AJ found that Complainant did not make out a prima facie case of national origin and sex discrimination because he did not show he was disparately treated. Assuming arguendo that Complainant made out prima facie cases of discrimination, the AJ found that the Agency articulated legitimate, nondiscrimination reasons for the actions at issue, and Complainant did not prove pretext. The AJ went on to find that Complainant did not prove hostile work environment. She found that there was a clash of workplace personalities with the way he was spoken to by support staff, not discrimination.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant argues that the record was not adequately developed by the investigator. We disagree. He also argues the AJ improperly denied his discovery motion to compel, and hence the record is inadequate. The AJ denied the motion for untimeliness. The AJ found that while on July 16, 2012, the Agency made its (second) response to Complainant's request for discovery on July 16, 2012 (with documentation it previously provided Complainant in September 2009, in response to a prior request), Complainant did not file his motion to compel until September 15, 2012, beyond the 10 day deadline to file the motion after receipt of a deficient response. The AJ also found that Complainant was provided an opportunity to support his motion to compel and/or counter the Agency's response thereto during a December 18, 2012, status conference, but did not proffer any additional argument. Complainant has not shown that the AJ abused her discretion in making this ruling.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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 the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. 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).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
The AJ's findings are supported by a preponderance of the evidence. Accordingly, the finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2015
__________________
Date
1 The Agency does not contest that it is also Complainant's employer for the purposes of 29 C.F.R. Part 1614.
2 In EEOC Appeal No. 0120102379 (Mar. 26. 2012), the EEOC determined that the complaint included issue 12.
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