[Redacted], Herman F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 9, 2022

Appeal No. 2021002920 (E.E.O.C. Aug. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021002920 Hearing No. 430-2019-00627X Agency No. 2004-0652-2018105843 DECISION On April 21, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 29, 2021, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Anesthesiologist at the Agency’s Medical Center Anesthesiology Service in Richmond, Virginia. On August 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2021002920 2 1. From May 29, 2018 to August 19, 2018, the Chief of Anesthesiology (Chief) distributed daily assignments, which were unequal and routinely gave Complainant either more complicated, less desirable, and more involved cases with the least experienced providers; 2. On May 29, 2018, the Chief issued Complainant written counseling; 3. On August 14, 2018, the Chief sent Complainant harassing emails regarding a history of tardiness; 4. On August 16, 2018, the Chief wrote Complainant a harassing email regarding his mismanagement of a medical case, and claimed Complainant did not meet with a patient; 5. On September 13, 2018, the Chief downgraded the Complainant’s hospital privileges to focused professional performance evaluation; 6. On October 12, 2018, the Chief accused the Complainant of violating Code of Conduct by making disparaging remarks about a Certified Registered Nurse Anesthetist (CRNA); and 7. On October 17, 2018, Complainant resigned. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 24, 2020, motion for a decision without a hearing and issued a decision without a hearing on March 24, 2021. In the AJ’s decision, they adopted the Agency’s Motion for Summary Judgment in full, noting that Complainant had presented no evidence that the Agency acted based upon discriminatory animus, reprisal, nor created a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In the Agency’s Motion for Summary Judgment, the Agency rebutted Complainant’s claims of a hostile work environment. In this regard, as to his contentions that he was assigned more difficult work, the Agency provided that there was no evidence to support his claim, nor did Complainant point to specific work which was more difficult. Regarding written counseling, the Agency indicated that Complainant was provided counseling because of his repeated late arrival to work. The Agency also clarified that all anesthesiologists were sent an email notifying them of the requirement to arrive to work on time. On August 15, 2018, Complainant was sent a brief email which reminded him of his expected arrival to work; the email ended by asking that Complainant “please” comply, and a sign off of “thank you!” 2021002920 3 As to the August 16, 2018, email, the Agency provided that the email was similarly professional, and was in relation to a report from a pharmacist that described Complainant’s treatment of a patient as aggressive and inappropriate. As to his privileges being downgraded in September 2018, the Agency noted that Complainant himself admitted that his privileges were not downgraded, nor was his practice restricted. The Agency cited to Complainant’s statement in the record located in it’s attached Exhibit 1. Rather, the Agency explained that Complainant was placed on a focused evaluation designed to improve Complainant’s performance. In regard to accusations that Complainant made comments about a coworker, a CRNA, the Agency pointed to the involved CRNA’s lengthy email which described incidents wherein Complainant had acted unprofessionally toward her. Finally, as to Complainant’s claim that he was forced to resign, the Agency found that Complainant had not shown any evidence of constructive discharge, or any coercion which would have led him to resign. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (Aug 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. We acknowledge that Complainant has submitted arguments on appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. As paraphrased above, the Agency has provided a nondiscriminatory reason for each of the claims at issue, and Complainant has failed to prove that these reasons were false, or pretext for discrimination. Moreover, in regard to a hostile work environment, the Agency has refuted Complainant’s claims of harassment. Upon review of the AJ’s summary judgment decision, the arguments on appeal, and the record as a whole, we find that the Agency’s Motion for Summary Judgment adopted in the AJ decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. In consideration of both parties’ motions, the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. 2021002920 4 We also agree that the Agency’s Motion for Summary Judgment, adopted by the AJ, correctly identified the legal standards for Complainant to prove that he was subjected to discrimination based on race and reprisal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021002920 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 August 9, 2022 Date