[Redacted], Norman V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021002011 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norman V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002011 Hearing No. 410-2019-00335X Agency No. 200I-0508-2019101221 DECISION On February 9, 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 January 6, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physician, Podiatry, GS-15, at the Atlanta VA Medical Center (“Atlanta VAMC”) in Decatur, Georgia. On January 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male), disability, age, and reprisal for prior protected EEO activity when: a. On November 26, 2018, Complainant was informed that his clinical privileges were being suspended until December 21, 2018; 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. 2021002011 2 b. On November 27, 2018, Complainant was issued a proposed removal; and c. On December 18, 2018, Complainant’s medical privileges were suspended. The Agency accepted the foregoing claims2 and conducted an investigation into the matter. The investigation showed Complainant has worked at the Atlanta VAMC for over 17 years as an Attending Podiatric Physician. Complainant testified there has been an ongoing attempt to remove him from federal service since 2006, and this harassment and hostile work environment have continued even though the allegations and/or charges brought against him have never been supported by substantial evidence. Complainant identified his immediate supervisor, Chief of Podiatry (“Supervisor”), and the Interim Chief of Staff (“Interim COS”)3 at the Atlanta VAMC as the individuals primarily responsible for the discrimination against him. Supervisor testified she began supervising Complainant in February 2016. Complainant identified a prior EEO complaint as the basis for reprisal against him. The record shows Complainant previously filed an EEO complaint on January 11, 2017 (EEOC No. 410- 2017-00419X, Agency No. 200I-0508-2017100440) raising claims of a hostile work environment based on events occurring from March through November 2016. Complainant stated Supervisor became aware of his prior EEO activity in 2016 during personal conversations, meetings with union representatives, and as part of that EEO complaint. He did not know whether Interim COS was aware of his prior EEO activity. Supervisor testified she became aware of Complainant’s prior EEO activity when he filed the prior EEO complainant against her and others in 2016. Claim (a) - Suspension of Clinical Privileges and Removal from Surgery Complainant testified that on November 26, 2018, Supervisor met him at the Operating Room Control Desk and advised she needed to speak to him outside. After moving to the hallway, Supervisor informed him that administration said Complainant needed to return to his desk in the clinic until he was contacted. She stated she had spoken to both of Complainant’s patients scheduled for surgery that day. One patient had consented to having the surgery performed that day by Supervisor, and the other patient had asked to reschedule. Complainant indicated Supervisor also informed him that she was told to cancel all of his clinics through roughly December 21, 2018, and he was not to have any contact with patients. He stated Supervisor said she did not know what was going on and she was just doing what she had been told. Complainant testified he returned to his clinic desk as instructed, but he never received an email or phone call advising him of his status. He testified he did not receive any documentation or response that day and there was no outcome that occurred on that date. 2 Claim c was also accepted as an independently actionable claim. 3 Interim COS retired from the Agency effective January 31, 2019. 2021002011 3 Supervisor testified she was instructed by Interim COS and Acting Associate Chief of Staff (“Associate COS”) to inform Complainant that all his clinic and surgical privileges would be suspended. She testified the decision to suspend was made by Interim COS and Associate COS, and she was not otherwise involved. Claim (b) - Proposed Removal On November 27, 2018, Complainant returned to his workstation and he received an email from Supervisor advising him to report to Interim COS’s office with his union representative that afternoon. In accordance with the email. Complainant met with Interim COS in the presence of his union representative and Supervisor. Interim COS presented him with a folder containing a document charging Complainant with Conduct Unbecoming a Federal Employee and a proposal to remove him from federal service. Specifically, according to Complainant, the alleged conduct was based on an allegation that he was responsible for assisting in the development and implementation of a study in VA medical facilities using a product called Epifix for venous leg ulcers, as well as the development of templates that could be used with the VA electronic medical records system. Complainant was reassigned to the Library and removed from patient care. Complainant and his attorney presented an oral and written response to the charges to the Interim Health Systems Director (“Director”). On December 17, 2018, Complainant was informed that the proposed removal was rescinded. However, the Agency reserved the right to move forward with another charge if needed. Complainant asserted that the Agency rescinded the proposed removal based on the data presented and “Safe Harbor Protection.” Supervisor testified Interim COS asked her to be present when Complainant suspension was given to Complainant, but the decision to suspend was made by Interim COS. Further, according to Supervisor, Interim COS instructed her to sign the reassignment letter at the time Complainant was informed of the proposed removal. She stated she did not draft and was not involved in the drafting of this document. Supervisor asserted that she learned at the same time as Complainant, that he would be reassigned to the Library but that she would remain his supervisor. The record contains a memorandum dated November 27, 2018 from Interim COS to Complainant with the subject “Notice of Proposed Removal” (“Notice”). It lists a charge of Conduct Unbecoming of a Federal Employee, specifying that “From approximately 2013 through 2017, Complainant was paid by MiMedx Group, Inc. as a consultant for duties that included the development and execution of a clinical study involving the application of EpiFix in Venous Leg Ulcers within VA Medical Centers and assisting in the development of various templates that could be used within the VA Electronic Medical Records Systems. These duties and/or compensation conflict or give the appearance of a conflict with your 2021002011 4 official duties. As such, you are being charged conduct unbecoming a federal employee.” (ROI, p. 202). Attached to the Notice is a second memorandum from Interim COS to an Employee/Labor Relations Specialist discussing Title 38 Aggravating and Mitigating Factors considered in determining the appropriateness of the penalty with respect to Complainant’s proposed removal. The memorandum states Complainant’s misconduct was intentional (as he received prior ethics guidance from Agency ethics attorneys and/or yearly ethics training) and repeated frequently, between 2013 and 2017, for almost $500,000. Interim COS wrote “[t]his misconduct is especially egregious as he received these monies at least in part to develop or conduct studies of EpiFix on VA patients which in turn affected (or at least give the appearance of affecting) his medical treatment of them for his own personal gain.” (ROI, p. 106). Interim COS did note that Complainant currently had a satisfactory proficiency rating and that his past disciplinary record was inapplicable. However, she explained that management had lost confidence in Complainant as he accepted almost $500,000, at least in part, to conduct studies on VA patients by using a particular product. She did not find any potential for Complainant “to be rehabilitated due to the serious nature of his misconduct and the fact that it continued for years and only stopped once he and/or MIMIX[sic] were investigated.” (ROI, p. 206). Complainant, via his attorney, provided a detailed response in which he described several conversations he had with VA ethics counsel regarding his consulting and speaking activities with MiMedx. Complainant also denied that he ever developed or executed a clinical study involving the application of MiMedx’s products within VA medical centers or that he developed any templates that could be used within the VA Electronic Medical Records Systems. He noted these duties were listed among other duties in his consulting agreement with MiMedx but he was never asked to perform these activities, nor did he actually perform them. He denied having knowledge of or playing a role in the VA procurement process and asserted he could not therefore have influenced procurement of MiMedx or other products and thus there is no appearance of impropriety. Complainant also noted the existence of an Agency “safe harbor” provision for those who, like Complainant, sought OGC ethics guidance and relied on the advice. No administrative sanctions are to be taken in such cases. Rather, Complainant argued that the proposed removal was the latest in a series of improper adverse actions and harassing conduct taken against him and to retaliate against him for his EEO activity. Complainant also described how Interim COS has improperly applied the Douglas factors in evaluating the aggravating and mitigating circumstances and relied on factually incorrect information in the assessment. Complainant asserted he only used MiMedx products when in his medical opinion it was determined to be best for the patient. He disputed that removing him from federal service would enhance the efficiency of the service. (ROI, pp. 108- 117). In support, Complainant provided an email from the Interim Chief of Medicine at the Atlanta VAMC showing Complainant’s Press Ganey scores (a measure of patient satisfaction) from 2017 ranged from 87.8-94.9, with his average score in the category “significantly higher than the average physician mean score.” He also provided other Press Ganey data. (ROI, pp. 118-169). 2021002011 5 Additionally, Complainant provided several of the communications he received from the Agency Ethics Specialty Team in response to his inquiries about his outside activities, including communications regarding product selection. (ROI, pp. 170-196). The record also contains a memorandum dated December 17, 2018 with the subject “Notice of Rescission of Proposed Removal”. The memorandum states “[t]he proposed removal dated November 27, 2018, has been rescinded. However, the Agency reserves the right to reissue or propose another action, if applicable.” (ROI, p. 101). Claim (c) - Summary Suspension of Medical Privileges The day after the rescission of the proposed removal, Supervisor met with Complainant and his union representative and stated: “here we are again two years later with the same problem. We have been trying to see all of [Complainant’s] patients at least the wound patients while he was reassigned and we are trying the best that we can. It now appears that some of them have bone infection.” (ROI, p. 81). Complainant stated he was then informed his privileges were summarily suspended pending investigation as he was an imminent threat to patient care. According to Complainant, he was instructed to remain in the Library until the completion of the investigation4. Complainant asserted that because the Agency could not remove him based on the alleged conduct unbecoming a federal employee, they then attempted to remove him by alleging failure to meet the standard of care. In support, Complainant noted that the suspension was dated the same day as the rescission of his proposed removal, which he believed was evidence of premeditation. Supervisor testified she informed Interim COS of patient care concerns regarding patients previously assigned to and treated by Complainant. She stated that Interim COS and Director made the decision to suspend Complainant’s clinical privileges. The record contains a letter from Director to Complainant stating the letter “is to notify you that your privileges are summarily suspended effective 12/17/18. This action is being taken upon the recommendation of the Chief of Staff since concerns have been raised to suggest that aspects of your clinical practice do not meet the accepted standards of practice and potentially constitute an imminent threat to patient welfare. This is due to the allegation of not providing the standard of care for podiatric conditions. This suspension is in effect pending a comprehensive review of these allegations…Since you cannot perform clinical duties during the review, the memorandum you received on 11/27/18 which assigned you to the library will remain in effect.” (ROI, pp. 99-100). 4 Which remained ongoing at the time of his testimony. 2021002011 6 Overall Harassment/Hostile Work Environment Claim While Complainant attested that he informed the Agency of the alleged harassment, and they failed to response, Supervisor contended she was unaware of any harassment or a hostile work environment. Further, Supervisor denied subjecting Complainant to a hostile work environment and explained that she was not involved in the decision to suspend Complainant’s clinical privileges or propose his removal. When leadership proposed Complainant’s removal, stated Supervisor, Complainant communicated to her that he knew Supervisor “did not have anything to do with this.” (ROI, p. 90). 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 (AJ). Complainant timely requested a hearing. Prior to the hearing, the Agency filed a motion for a decision without a hearing. In his response to the Agency’s motion, Complainant withdrew his claims that the discrimination and harassment he suffered were based on his age, sex, or disability, leaving only the basis of reprisal for EEO activity at issue. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 20, 2020, motion for a decision without a hearing and issued a decision without a hearing. In his December 31, 2020 decision, the AJ found Complainant had not demonstrated Agency officials were motivated by his prior EEO activity. 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. 5 Complainant filed the instant appeal. On appeal, Complainant contends the AJ applied an incorrect standard of law, improperly made multiple findings of disputed fact, failed to credit Complainant’s evidence and draw inferences in his favor, and instead crediting management explanations. The AJ erred by adjudicating the merits of the case, argues Complainant, instead of deciding whether summary judgment was warranted. In Complainant’s view, the AJ focused on whether the Agency acted in good faith instead of whether their treatment of Complainant was motivated by his protected EEO activity. Complainant states the evidence presented shows he was not involved in the Agency’s podiatry scandal and he was not charged with any criminal conduct, but the AJ erred in granting summary judgment for the Agency when he relied upon and cited the adverse inference raised by the Agency that Complainant had acted improperly. Complainant also argues the AJ improperly weighed the evidence when he found Complainant’s evidence, regarding obtaining ethics opinions, was not persuasive. Moreover, Complainant asserts that the legitimacy of the Agency’s proposed removal creates a triable issue of fact. Complainant argues that due to these errors, the case should be remanded for a hearing. 5 The AJ also declined Complainant’s request to hold the instant complaint in abeyance until an investigation of a subsequently filed EEO complaint was complete. The AJ reasoned that the subsequent complaint involved different management officials and Complainant had not shown it was related to the instant case. 2021002011 7 In response, the Agency maintains there were no genuine issues of material fact and its decision finding no discrimination should be affirmed. The Agency argues Complainant has not met his burden to show evidence supporting his retaliation claims. The Agency argues the AJ’s focus on good faith is consistent with determining whether the Agency articulated legitimate nondiscriminatory reasons for its actions, and Complainant simple failed to demonstrate a dispute of a material fact that would show reprisal or pretext. Additionally, the Agency asserts that Complainant’s appellate brief was untimely filed and should not be considered. Complainant filed a reply stating the, one day, late submission was purely inadvertent and respectfully requesting the brief be considered since the Commission favors disposition of claims on their substance over strict application of procedural deadlines. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, Complainant has provided some specific facts he believes are in dispute and cited to evidence he believes supports this contention. However, based on the record before us, these facts are either not in dispute, not material, and/or the evidence Complainant cites relies on his own subjective beliefs. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). That is, even if these facts as asserted by Complainant were true, it would not affect the outcome of the case. 2021002011 8 Complainant argues that in the context of an ongoing and escalating conflict between him and some managers, wherein he challenged their adverse treatment by filing EEO complaints, a finding that the Agency’s treatment of him was free from any retaliatory motive cannot be made without an opportunity to present evidence at a hearing. However, Complainant has failed to identify the evidence to be presented at such a hearing in support of this claim. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment The allegations in claim (c) give rise to a claim of 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. Tex. 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, we find the Agency has articulated a legitimate, non-discriminatory reason for its actions. Namely, Complainant received a summary suspension of privileges due to concerns about clinical practices involving patient care, until a review could establish that he could safely and effectively treat patients. While covering and reviewing Complainant’s cases, Supervisor found several patients were not given routine serial x-rays. After obtaining x-rays, Supervisor determined several patients had a bone infection. Supervisor notified Interim COS of this, stating she was “finding some serious issues with poor patient care as we inherit and manage [Complainant’s] patients.” The suspension was signed by Director and stated it was at the recommendation of Interim COS. 2021002011 9 The burden then shifts to Complainant who must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In an effort to establish pretext, Complainant argues that there is simply a professional dispute with his Supervisor over whether the professional standard of care requires such x-rays. He maintains that the care he provided to the patients in question was well within the applicable standards. However, even assuming Complainant’s facts as true (that he was meeting the standard of care and the responsible parties knew of his prior EEO activity), that is not enough to demonstrate that Supervisor, Interim COS, or Director were motived by his protected EEO activity. Again, assuming Complainant’s version of events to be true, Complainant argues the Agency has been trying to remove him since 2006, that Supervisor has displayed personal animus towards him in the past, and that he notified the Agency prior to her hiring in 2016 that Supervisor would likely cause issues for him. Complainant acknowledges he disagrees with his Supervisor with respect to how to respond to certain cases. As such, these allegations paint a picture of personality conflicts and disputes over how work should be performed. Complainant has not presented any evidence, beyond mere conjecture, to support that these actions were in any way motivated by retaliation for his protected EEO activity. Additionally, the question is not whether the Agency made the best, or even a sound, business decision in suspending Complainant’s privileges; it is whether the real reason is discrimination. See, e.g., Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason [was discriminatory]”). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency's business decisions may not be second-guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). Even viewing the facts in the light most favorable to him, Complainant has not met his burden to show the Agency was motivated by his prior EEO activity or that their proffered explanation is unworthy of credence. Hostile Work Environment Complainant argues that the AJ’s grant of summary judgment in favor of the Agency was improper because the AJ failed address his claim of hostile work environment. However, we note that the AJ’s decision contains much discussion regarding whether Complainant’s prior protected EEO activity motivated the Agency’s actions. 2021002011 10 To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). With retaliatory harassment, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter complainant or others from engaging in protected activity. Id. Here, viewing the facts in the light most favorable to Complainant, he has again failed to show the harassment and hostile work environment complained of were related to his prior protected EEO activity. Complainant acknowledges the Agency asserts his dealings with MiMedx were the reason for suspending his privileges and proposing his removal. However, he disputes that he was responsible for assisting in the development and implementation of a study in VA medical facilities using a particular product for venous leg ulcers as well as the development of various templates that could be used with the VA electronic medical records system, as alleged. He also asserts he acted within the confines of the advice provided to him by the Agency’s ethics counsel and thus: 1) the Agency was aware of his activity and approved of it, and 2) he should not be subject to disciplinary action because of the Agency’s safe harbor provisions. However, this does not show the Agency’s proffered explanations for their Proposed Removal and detail out of patient care are unworthy of credence. Complainant admits he consulted with MiMedx and that he cooperated in an OIG investigation of MiMedx, which resulted in no action against Complainant. Complainant acknowledges there was a “VA Podiatry Corruption Scandal” at VA facilities in other states. Even taking these facts in the light most favorable to Complainant, he has not demonstrated a retaliatory motive. 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 final action adopting the AJ’s decision. 2021002011 11 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). 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). 2021002011 12 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 22, 2022 Date