0120101571
08-17-2011
Morteza Tajlili, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Morteza Tajlili,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101571
Agency No. 2004-0659-2009100359
DECISION
On February 9, 2010, Complainant filed an appeal from the Agency’s
February 3, 2010, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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. § 1614.405(a). For the
following reasons, the Commission VACATES the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to
allow the Commission to determine if management constructively discharged
Complainant on the basis of age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant, a
GS-15 Staff Pathologist, worked as the Acting Director of the Pathology
and Laboratory Medicine Service at the Agency’s VA Medical Center in
Salisbury, North Carolina (SVAMC). Complainant’s first level supervisor
was the Chief of Staff (CS).1 Complainant’s second level supervisor
was the Medical Center Director (MCD).
On February 11, 2008, CS rated Complainant “Fully Successful” on his
performance appraisal for the period of October 1, 2006 to September 30,
2007. CS wrote in the narrative summary, “Despite many of the negative
issues found in the laboratory, [Complainant] continues to perform well
in surgery and anatomic pathology. The presence of inadequate space
and staffing has caused issues which should not reflect negatively on
his abilities.”
On June 16, 2008, the Acting Chief of Staff (ACS) issued Complainant
a notice of proposed removal from his laboratory position and from
federal service. The notice explained that an Assessment Summary Report
issued on September 18, 2007 identified numerous deficiencies which
impacted laboratory test results and patient care services for veterans
at SVAMC. The notice stated that Complainant was responsible for the
overall management and functioning of laboratory services for the SVAMC.
The letter outlined three charges: (1) Failure to Provide Quality Control
Measures; (2) Failure to Adhere to Established Guidelines Delineated in
CAP Chemistry and Toxicology Checklist, 2006; and (3) Failure to Review
and Assess Competency and Qualifications of Assigned Staff.
On October 3, 2008, MCD sustained the charges and issued Complainant
a notice of removal, effective October 24, 2008. On October 7, 2008,
Complainant applied for retirement. Complainant retired from the Agency
effective October 24, 2008.
On November 25, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of age (65) 2 when
management forced him to retire on October 24, 2008, in lieu of removal.
On February 17, 2008, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
In Tajlili v. Department of Veterans Affairs, EEOC Appeal No. 0120091573
(July 23, 2009), the Commission found that Complainant’s complaint
stated an actionable claim of constructive discharge, reversed the
Agency’s dismissal, and remanded the matter to the Agency for further
processing. 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.
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 discriminated against
him as alleged.
In its decision, the Agency initially found that Complainant failed to
establish a prima facie case of age discrimination. Next, the Agency
found that management articulated a legitimate, nondiscriminatory reason
for Complainant’s removal; namely, “the Chief of Staff” proposed
his removal and MCD sustained his removal because laboratory inspections
in 2007 identified serious performance deficiencies that placed patient
safety at risk. Finally, the Agency found that Complainant failed to
prove that management’s reason was a pretext for age discrimination
or that his working conditions were intolerable.
CONTENTIONS ON APPEAL
On appeal, Complainant contended, among other things, that the EEO
investigation was “poorly performed” because there was no affidavit
from CS, his direct supervisor at the time. In addition, Complainant
disputed the Agency’s statement in its final decision that “the
Chief of Staff” proposed his removal. Complainant argued that CS
never proposed his removal and, on the contrary, agreed with him that the
laboratory deficiencies were unrelated to his performance. In support of
his argument, Complainant referenced his “Fully Successful” rating
from CS. Further, Complainant asserted that ACS, who signed his notice
of proposed removal, did not know anything about the 2006-2007 laboratory
deficiencies and only signed the notice because MCD and management told
him to do so.
In response, the Agency argued that Complainant failed to offer any
justifiable evidence to support his age discrimination claim and requested
that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
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), Ch. 9, § VI.A. (Nov. 9, 1999) (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”).
Adequacy of the Record
Our regulations provide that the agency shall develop an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint and define an appropriate factual record
as one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred. 29 C.F.R. § 1614.108(b).
Upon review, we find the record to be insufficiently developed for
us to determine if the Agency constructively discharged Complainant.
Here, there are two possible management officials who could have
been responsible for proposing Complainant’s removal: (1) ACS,
whose signature is on the June 16, 2008 notice of proposed removal;
and (2) CS, whom MCD clearly attested had proposed the removal. We do
not know who actually proposed Complainant’s removal because neither
ACS nor CS provided an affidavit. In addition, there is no indication
that the EEO Investigator attempted to contact ACS or CS to obtain
their testimony. For the Commission to draw a conclusion on whether
discrimination occurred, we require insight into the rationale of the
management official who actually proposed Complainant’s removal.
This is especially important if CS was the proposing official because,
only a few months earlier, he had rated Complainant “Fully Successful”
for the 2006-2007 rating period.
In most instances, the individual who initiated or enforced the decision
or engaged in the action about which the complaint was filed should be
interviewed early in the investigation. EEO MD-110, at Ch. 6, § VII.C.2.
Here, we find that the EEO Investigator failed to obtain affidavits from
the management official (ACS or CS) who initiated Complainant’s removal.
Accordingly, we remand Complainant’s complaint back to the Agency for
a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we VACATE
the Agency’s final decision and REMAND Complainant’s complaint in
accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an
adequate factual record regarding Complainant’s constructive discharge
claim.
a. The Agency shall obtain all pertinent evidence to address
Complainant’s claim including, but not limited to:
i. Sworn affidavits from ACS and CS explaining in detail their role
in proposing Complainant’s removal and their reasons for doing so.
.
b. The Agency shall give Complainant the opportunity to respond to
any additional testimony obtained by the Agency through a supplemental
affidavit.
2. The Agency shall complete its supplemental investigation and
issue a new final decision, together with the appropriate appeal rights,
within ninety (90) calendar days of the date this decision becomes final,
unless the matter is otherwise resolved prior to that time. A copy of
the Agency’s new final decision must be sent to the Compliance Officer
as referenced below.
In accordance with Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-23 (November 9, 1999), the Agency
shall give priority to this remanded case in order to comply with the
time frames contained in this Order. The Office of Federal Operations
will issue sanctions against agencies when it determines that agencies
are not making reasonable efforts to comply with a Commission order
to investigate a complaint. In particular, 29 C.F.R. § 1614.404(c)
provides that when an agency fails without good cause to respond fully
and in timely fashion to requests for information, the Office of Federal
Operations shall, in appropriate circumstances:
(1) Draw an adverse inference that the requested information or testimony
would have reflected unfavorably on the party refusing to provide the
requested information;
(2) Consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party;
(3) Issue a decision fully or partially in favor of the opposing party; or
(4) Take such other actions as appropriate.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____8/17/11_____________
Date
1 The record reflects that, sometime between February 11, 2008 and June
16, 2008, CS left the SVAMC. According to the Assistant Chief of Human
Resources’ affidavit and Complainant’s appeal brief, CS went to
another Agency facility.
2 Complainant had also alleged discrimination on the basis of national
origin, but withdrew that basis in his affidavit.
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0120101571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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