0120152469
11-21-2017
Michel M,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michel M,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120152469
Agency No. 200305492014102968
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), the Agency's June 30, 2015 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. and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Staff Physician, GS-15, Ambulatory Care Service ("ACS"), at the Agency's Medical Center in Bonham, Texas.
On July 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (hearing loss in right ear) and age (62) when:
On April 16, 2014, he was issued a 14-day suspension (without pay), which he served from June 9, 2014 through June 20, 2014.
Complainant had been working at the Bonham medical facility, which was within the VA North Texas Health Care System ("VANTHCS") for 21 years. His first level supervisor ("S1") was the Chief of ACS (age 55, no disability) and his second level supervisor ("S2") was the Associate Chief of Staff for ACS (age 37, no disability). Complainant's third level supervisor ("S3") was worked in the Agency's Dallas facility, as the Chief of Staff, VANTHCS (age 68, no disability) and Chair of the Executive Committee of the Medical Staff ("ECMS").
On or about September 27, 2013, a patient under Complainant's care filed a complaint with the Patient Advocate's office and spoke with S1, requesting reassignment to another physician. The patient alleged that during an appointment with Complainant in August 2013, Complainant called the findings other medical experts within VANTHCS, who saw the patient for a spinal condition "stupid" and told the patient that he would "make sure" that the patient would not be scheduled with neurologists and orthopedists as it would be a "waste of time." S1 reassigned the patient to another doctor. Complainant was not happy with how S1 handled the matter, and when he was informed that S1 wanted to speak with him, he made a comment that S1 could "kiss my ass." Then, the matter was raised with S3, as the patient's complaint seemed "to suggest that aspects of [Complainant's] clinical practice ...potentially constitute an imminent threat to patient welfare." Complainant was issued a summary suspension of privileges, which, as S3 testified, was "not a disciplinary action. [but rather] a time out, it's a way to set things aside until we can determine whether or not some serious allegation could be substantiated."
On or around October 10, 2013, S3, as Chair of ECMS, formed an "ad hoc investigative committee" ("the Committee") of three providers within VANTHCS who practiced at the same skill level as Complainant, and had knowledge of ACS, but did not know him directly and were not involved with the allegations. The Committee was instructed to review documentation, including 23 contact reports naming Complainant, and emails submitted by S1, to determine whether the allegations raised a conduct issue, versus a matter of professional competency or substandard care. The Committee relied on Agency policy and regulations, such as the Agency's "core characteristics abuse of patients' policy," patient rights, and patient safety regulations under 38 C.F.R. 17.33. They narrowed their investigation to the 6 of the 23 reports, as they contained written material submitted by veterans or their families expressedly identifying Complainant and describing his actions. The Committee unanimously agreed that the issue was Complainant's conduct, not his standard of care or professional competency.
On November 6, 2013, the Committee presented its findings to ECMS. Complainant was invited to participate but did not attend the meeting or offer a written response. Regardless, ECMS concluded that Complainant "was professional, competent and provided good care," and reinstated his privileges to practice. S3 testified in the record that this finding "certainly bore out our impressions of [Complainant's] long-standing employment with [the Agency]." S3 also noted that Complainant had "never been thought to be a physician who provided substandard care." As ECMS was only authorized to issue decisions on patient safety, the concerns the Committee raised about Complainant's conduct would be addressed administratively. In the meantime, Complainant returned to work with full privileges on November 15, 2013.
On December 17, 2013, S2, based on determinations with General Counsel, HR and S1 issued Complainant a Notice of Proposed Suspension to last 30 days and detailing three charges: (1) Verbal Patient abuse; (2) Using inappropriate and disrespectful language about a supervisor; and (3) failure to follow supervisory instructions. The matter was negotiated to a reduced suspension of 14 calendar days. The VANTHCS Director, who worked out of the Dallas facility and was Complainant's fourth level supervisor ("S4") signed off on the suspension over Complainant's objections. Believing discriminatory motivation, Complainant initiated the instant complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation ("ROI") and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final agency decision ("FAD") pursuant to 29 C.F.R. � 1614.110(b), concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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").
Dissatisfaction with the Investigation and Witness Credibility
Pursuant to 29 C.F.R. � 1614.108(b) an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint, meaning a record that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. While the agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, Complainant can also cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an EEOC Administrative Judge ("AJ"). See Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130273 (Sept. 5, 2014) citing EEO MD-110, at Ch. 6, � XI and Ch. 7, � I.
Complainant chose not to take advantage of the above-mentioned opportunities to cure any defects in the investigation, which he now raises as justification for reversing the Agency's FAD in the instant appeal. Complainant argues that he was "not afforded a fair opportunity to present evidence" because the Agency's investigator did not interview any of the 12 witnesses he submitted. He also challenges the Agency witnesses' credibility, arguing that in its FAD, the "Agency gave undue credence to the unsubstantiated, self-serving claims of Agency management." Documentation in the ROI demonstrates that Complainant was aware of these alleged deficiencies when the ROI was issued. In a December 11, 2014 email, the EEO Investigator informed Complainant that she "contacted his witnesses but did not receive a response before the case was submitted," yet there is no evidence that Complainant acted on this information prior to the instant appeal. A document entitled "Complainant's Rebuttal Statement" dated November 19, 2014, and signed by Complainant, acknowledges that he read the Agency's witness affidavits, and states, "[the affidavits] are full of inaccuracies and lies; however, at this time, I would prefer to address these matters in front of an EEO judge at a hearing." In the same document, the option, "I do not desire to comment further," is clearly checked off. There is no evidence Complainant requested a hearing, and he has not asserted his right to a hearing on appeal.
Upon review, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether age or disability discrimination occurred. The record contains sworn affidavit testimony from 11 individuals, including Complainant, Complainant's first, second, third and fourth level supervisors, the three members of the Committee, and the HR Official who drafted the Notice of Suspension. The record also contains supporting documents, including the relevant Agency policies and regulations cited by the Committee and HR's determination that Complainant's actions violated professional conduct standards as well as the written complaint of the patient and records of patient reports used by the Committee to determine the matter was a conduct-related issue. Accordingly, we find that the record is adequately developed. If Complainant wanted an opportunity to develop the record through discovery and cross examination of witnesses, he should have requested a hearing before an AJ.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency's legitimate nondiscriminatory reason for issuing the suspension is that it was acting in accordance with Agency policy and regulations to discipline Complainant for unprofessional conduct identified by the Committee.2
Assuming for purposes of this analysis, Complainant established a prima facie case of both age and disability discrimination, he has not shown the Agency's proffered legitimate nondiscriminatory reason for its actions. The Committee, a neutral party outside S1's chain of command, investigated the evidence and concluded a conduct violation existed. To the extent Complainant argues that the impressions of him as "rude" were due to difficulty controlling tone and volume of his voice due to hearing loss in his right ear, we note that the patient's complaint that led to the suspension was based on the content of Complainant's statements (e.g. stating prior medical advice was "stupid"). Likewise, Complainant was disciplined in part for stating S1 could "kiss his ass." Complainant has not shown pretext for disability discrimination.
On appeal, Complainant argues, without evidence, that S1 sought to use the charges against him as an "opportunity...to force him to retire." We note that testimony in the record by the HR Specialist assigned to draft Complainant's suspension notice indicates that S1 initially recommended Complainant's termination from employment. However, this on its own is insufficient evidence for pretext. The Committee was provided S1's account of the incidents and Complainant's actions toward him, but they also based their decision on 6 written accounts by hospital staff, and the veterans and in some cases, their families. Their finding was further reviewed by the ECMS. By his own testimony, S3, Chair of ECMS, provides positive comments about Complainant as an employee. He also testifies to his own impression of a deterioration in Complainant's professional conduct in the past year - supporting the disciplinary action. While both S1 and S2 were responsible for administratively handling the disciplinary action for Complainant's conduct, their decision-making process was informed by General Counsel and HR. The record also includes evidence that S1 acted within his authority and that discipline was consistent with the Agency's policy and regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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). 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. 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
November 21, 2017
__________________
Date
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 Complainant also alleges that S1 was retaliating against Complainant for reporting the Agency's prescription practices for controlled pain management substances which falls under the Whistleblower Protection Act. We will not address this theory of the complaint further, as the Commission does not have jurisdiction over Whistleblower Protection Act claims. See Reavill v. Dep't of the Navy, EEOC Appeal No. 05950174 (Jul. 19, 1996).
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0120152469