Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-0835-0500 (E.E.O.C. Sep. 25, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130835

Hearing No. 420-2012-00051X

Agency No. 2001-0521-2011101411

DECISION

On December 21, 2012, Complainant filed an appeal from the Agency’s November 26, 2012
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. The Commission deems the appeal timely and accepts
it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Podiatrist at the Agency’s Medical Center in Birmingham, Alabama.
On March 10, 2011, Complainant filed an EEO complaint in which he alleged that the Chief of
Physical Medicine and Rehabilitation Services (Chief) discriminated against him on the bases
of race (African-American), religion (Christianity), and reprisal (prior protected EEO activity)
by not promoting him to the GS-14 level and by assigning him to perform surgery on another
doctor’s patients in November 2010. He amended his complaint to include a 14-day
suspension which was sustained on August 12, 2011.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing but the AJ returned the case to the Agency after finding that Complainant had not
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complied with her initial acknowledgement and order. The Agency subsequently issued a final
decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

Complainant averred that since November 2007, the Chief had been denying his bid for
promotion to Senior Physician, GS-14. IR 85-86. In order to attain such a promotion,
Complainant had to demonstrate that either he had sufficient academic stature, as evidenced by
a faculty appointment, peer-reviewed publications, or other indicia, or that he was board-
certified. Complainant achieved his promotion on May 22, 2011, after the Chief had
determined that he had met the qualifications and moved his application forward. IR 94-96,
141-49, 152-60, 178, 182.

On November 11 and 23, 2010, the Chief assigned Complainant to perform surgery on another
doctor’s patients without justifying his order. IR 86-87, 144. The Chief responded that he had
given Complainant the assignment because the other Podiatrist had taken on other duties. The
Chief further testified that Complainant refused the assignment because he did not want to take
on what he thought of as extra work, although Complainant did as he was directed and
performed the surgeries. IR 97-98, 144-45, 184-90.

Complainant received a 14-day suspension on August 12, 2011, on a charge of improper
conduct. The incident which gave rise to the suspension occurred on May 12, 2011.
Complainant was consulting with a patient in his office while listening to a talk radio show.
When the patient, who was offended by the content of the show, asked Complainant to turn it
off, Complainant had become very argumentative and aggressive with her. The patient had a
documented history of post-traumatic stress disorder, and had suffered a panic attack as a
result of her encounter with Complainant. In proposing the suspension, the Chief noted that if
Complainant had read the patient’s chart, he would have been aware of her condition. IR 106-
09, 192-93. In sustaining the suspension, the deciding official took note of prior disciplinary
actions that occurred in April 2009 and February 2010, the latter being a 7-day suspension for
inappropriate conduct and failure to follow instructions. IR 205-06.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that the Chief was motivated by unlawful
considerations of his race, religion, or previous EEO activity when he took the actions
described in the complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000). More is required to meet that burden than merely expressing one’s belief.
Complainant must present actual, specific evidence of unlawful motive. Such evidence can
take the form of discriminatory statements or past personal treatment attributable to the Chief,
comparative or statistical data showing significant discrepancies along racial or religious lines,
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unequal application of Agency policy, deviations from standard procedures without explanation
or justification, or inadequately explained inconsistencies in the evidentiary record.

In this case, the Chief’s affidavit testimony has been extensively corroborated by email trails
and contemporaneously prepared memoranda documenting the incidents. While Complainant
raises a number of contentions on appeal regarding the thoroughness of the investigation and
the impropriety of the AJ’s decision to dismiss the case, the fact remains that he has not
presented sworn statements from other witnesses, documents, or any other evidence sufficient
to contradict the explanations provided by the Chief or otherwise call the Chief’s veracity into
question. Indeed, the fact that the Chief moved Complainant’s application for promotion
forward after determining that Complainant met the necessary qualifications is enough by itself
to dispel any notion that the Chief harbored a discriminatory animus toward him. We
therefore find, as did the Agency, that Complainant failed to satisfy his burden of proof as to
the existence of discrimination with respect to his bid for promotion, his surgery assignment or
his 14-day suspension.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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.

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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

September 25, 2015
Date