01A33229_r
08-14-2003
Sheikh M. Sadiq, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sheikh M. Sadiq v. Department of Veterans Affairs
01A33229
August 14, 2003
.
Sheikh M. Sadiq,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33229
Agency No. 97-2326
Hearing No. 160-98-8304X
DECISION
Complainant appeals to the Commission from the agency's March 27, 2003
decision finding no discrimination. Complainant alleges discrimination on
the bases of race (Asian) and age (DOB: March 10, 1941), when, on January
14, 1997, he was notified of his separation from employment through a
planned agency staff adjustment, effective March 31, 1997. Following a
hearing, an Administrative Judge (AJ) issued a decision on February 26,
2003, finding that complainant had not been discriminated against.
Specifically, the AJ found that the agency presented a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut. The agency, on March 27, 2003, issued a decision adopting
the AJ's decision. Complainant now appeals from that decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency has shown a legitimate nondiscriminatory reason
for the termination. Management said that budget shortfall for FY 97
and 98 of 4 to 6 million dollars and the recommendations of the Chief
of Medicine and the Clinical Resources Committee (CRC) were the reason
for its Staff adjustment decisions, including separation of complainant.
The former Chief of Medicine stated that the factors that he considered ,
and the recommendations to management on Staff Adjustments, were related
solely to the needs of the service. The former Chief of Medicine
mentioned that he looked at the positions and not people. The former
Chief of Medicine noted that one of the first events to occur was the
closing of ward 9A and the movement of these patients to other units
and to the community. The former Chief of Medicine said that the next
question that he addressed was the number of neurologist necessary to
meet the reorganized workload. The former Chief of Medicine expressed
that the Medical Service Center was divided into three main sections of
Long Term Care, Acute Medicine and Ambulatory Care. The former Chief
of Medicine believed that all of the physicians in long term care, acute
medicine ambulatory care, etc., were doing excellent jobs. In evaluating
the needs of the organization, and the experience and qualifications
of each of the 15 physicians, it was the former Chief of Medicine's
opinion that complainant's skills and experience were no better than
any of the other physicians. Complainant was a Generalist/Neurologist.
The other full time neurologist directed the Dementia Unit and maintained
a faculty appointment (Clinical Instructor of Neurology) at the University
of Rochester.
The Medical Center Director explained that clinicians looked at where
physicians were located and who had been impacted by ward closures.
The Medical Center Director commented that they then completed the
decision process by determining the kind of physician skills that were
needed in the changing organization. In summary, management reported
that staff adjustments were dictated by budget numbers and the needs of
the organization.
According to the hearing transcript, the Human Resource Manager
testified that the agency followed specific guidelines in conducting
the staffing adjustments. The Human Resource Manager insisted that the
only motivating factor for the staff adjustments was to reduce cost.
The Human Resource Manager remarked that a committee was established
to determine the need of the agency in restructuring patient care from
inpatient to outpatient. The Human Resource Manager indicated that the
staffing adjustments affected the entire medical care area and at least
four physicians were separated during March Reduction-In-Force (RIF).
The Human Resource Manager said that a total of fourteen physicians were
separated during the March and September RIFs. In essence, the Human
Resource Manager testified that the agency was restructuring patient
care for outpatient service and needed less physicians for in-house care.
Complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reason. Moreover, complainant has failed to show,
by a preponderance of the evidence, that he was discriminated against
on the bases of race or age.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 14, 2003
__________________
Date