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

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2021002920 (E.E.O.C. Feb. 8, 2023)

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. Request No. 2022004888 Appeal No. 2021002920 Hearing No. 430-2019-00627X Agency No. 2004-0652-2018105843 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Herman F. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021002920 (Aug. 9, 2022). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as an Anesthesiologist at the Agency’s Medical Center Anesthesiology Service in Richmond, Virginia. 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. 2022004888 2 On August 28, 2018, Complainant filed a formal EEO complaint, subsequently amended,2 claiming discriminated against him based on race (African-American), as well as in retaliation for prior protected EEO activity, when: 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 Complainant’s hospital privileges to focused professional performance evaluation. 6. On October 12, 2018, the Chief accused Complainant of violating Code of Conduct by making disparaging remarks about a Certified Registered Nurse Anesthetist (CRNA). 7. On October 17, 2018, Complainant was forced to resign. Following the Agency’s investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on March 24, 2021, the AJ summarily adopted the Agency’s motion for summary judgment and, over Complainant’s objection, found in favor of the Agency. Thereafter, the Agency issued a final order adopting the AJ’s decision. Complainant appealed. In EEOC Appeal No. 2021002920, the Commission affirmed the AJ’s summary judgment decision concluding Complainant had not presented any evidence that the Agency displayed discriminatory or retaliatory animus toward him or subjected him to a hostile work environment. 2 The record indicates that Complainant submitted a motion to amend his formal complaint to include two additional claims alleging: (1) that he was subjected to racial and retaliatory animus when the Chief of Anesthesiology issued him a summary suspension of his privileges on or around October 17, 2018; and (2) that he was subjected to a constructive termination when he resigned his position on October 18, 2018, based on racial and retaliatory animus. The AJ granted Complainant’s motion to amend in the AJ’s November 6, 2019, Initial Conference Order. The AJ further noted that the parties agreed that no supplemental investigation was necessary to address these amended claims. 2022004888 3 Specifically, the prior decision explained, as analyzed in the Agency’s motion, that: Complainant failed to provide examples of being assigned more difficult work; Complainant was counseled because he failed to report to work on time and was politely asked, via email, to comply; and Complainant denied that his privileges were ever downgraded. Instead, Complainant was placed on a focused evaluation to help improve his performance. The prior decision further explained, as analyzed in the Agency’s motion, that there was evidence to support the CRNA’s accusations that Complainant acted unprofessionally toward her, and there was no evidence to support that Complainant was forced to resign (constructive discharge). We note, as Complainant indicates on reconsideration, that the prior decision did not identify Complainant’s amendment to his complaint concerning the suspension. The record reflects, however, that this claim was addressed and analyzed in the Agency’s motion for summary judgment, and subsequently adopted by the AJ. While also not identified as one of the claims at issue in the beginning of the motion, the Agency extensively discussed Complainant’s amended suspension claim and found that the Agency had articulated legitimate, non-discriminatory reasons for issuing the suspension. Specifically, the Agency indicated that record reflected that Complainant was issued the suspension because he wrote post-operative notes, on more than one occasion, indicating that a patient was stable, free of pain even though the patient was still under anesthesia at the time. The Agency explained that Complainant was notified of this concern on October 9, 2018, and Complainant’s privileges were suspended from October 12 through October 18, 2018. The Agency further explained that Complainant was notified on October 18, 2018, that his suspension was “pulled back by the Chief of Staff for clerical reasons.” Complainant, however, still resigned shortly after getting this notification. Complainant resigned from the Agency on November 9, 2018, and his suspension was never reissued.3 Consequently, the Agency reasoned that Complainant was not forced to resign from his position and failed to establish that he was subjected to a constructive discharge. Therefore, we find that Complainant’s suspension and constructive discharge claims were properly adjudicated. We emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2021002920 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 3 In his resignation letter, Complainant requested to resign his clinical privileges effective October 18, 2018, and to fully resign from the Agency effective November 9, 2018. 2022004888 4 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 February 8, 2023 Date