Victor F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2019003118 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003118 Agency No. 2003-0635-2018102726 DECISION On February 12, 2019, 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 17, 2019 final order 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. Our review is de novo. 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 a Staff Physician, Radiology, VM-0602-05, at the Agency’s VA Healthcare System in Oklahoma City, Oklahoma. On May 15, 2018, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the basis of his age (80) when effective February 28, 2018, he was removed from his position and his clinical privileges were revoked. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 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. 2019003118 2 The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. The record reflects that the Agency’s Oklahoma City Medical Center’s Chief of Staff stated that after an investigation of missed radiological diagnoses, all of the Agency’s Oklahoma City radiologists underwent an external peer review for concurrence of diagnoses in 2016. The Chief of Staff stated that 11 radiologists were reviewed and five were identified with discrepancies. The Chief of Staff asserted that two of these five radiologists resigned and the other three underwent further review. According to the Chief of Staff, during the prospective review, after the three radiologists were notified of the concern and plan for additional review, Complainant was the only one who continued to have a high discrepancy rate. Complainant believed that the Medical Center Director was attempting to remove older physicians and hire younger staff. Complainant maintained that at the outset of the suspension of his clinical privileges his Supervisor advised him to retire and in return the Agency would stop its proceedings against him, and not report him to the relevant medical boards. Complainant claimed that the prospective review conducted by the National Teleradiology Program (NTP) was specifically structured to target him. Complainant stated that the other two radiologists only read CT and ultrasound scans, but the review focused on the reading of MRI cases, which is what he does. Complainant indicated that MRI readings are more complex and nuanced. In its final decision, the Agency assumed arguendo that Complainant set forth a prima facie case of age discrimination. Management stated that Complainant was terminated due to significant and documented quality of care issues. According to management, Complainant committed too many errors and misses in reading films and scans, which were greater than acceptable, and greater than the standard set by the Department, as identified in national reviews of Complainant’s radiology reports. Management explained that a national auditor (the NTP) showed that Complainant had reads that were not performed appropriately at a higher rate in comparison to his peers. Management stated that Complainant was apprised of the reviews and that he had performance problems since March 23, 2017, which was the date that Complainant’s clinical privileges were suspended. The Agency determined that these were legitimate, nondiscriminatory reasons for Complainant’s removal. The removal was proposed by the Chief of Staff and the deciding official for the removal was the Medical Center’s Director. The Agency noted that Complainant argued he had no legitimate performance problems, he was subjected to performance standards that were not applied to the younger radiologists and he was told by his Supervisor that he should retire while he was at the top of his game. The Agency determined that Complainant did not provide probative evidence to corroborate his claim that he did not commit the errors discovered by the auditor or that his younger peers were not held to the same national and departmental standards as him. The Agency further determined that Complainant did not provide corroborating evidence to support his claim regarding what his Supervisor said to him concerning retirement. The Agency stated that Complainant did not refute the legitimate, nondiscriminatory reasons it presented for his termination. 2019003118 3 As a result, the Agency found that Complainant was not subjected to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that his reinstatement by the Agency’s Disciplinary Appeals Board (DAB or Board) is evidence that his termination was discriminatory. In support of his appeal, Complainant submits the DAB’s decision dated May 7, 2018, wherein the Board determined that the removal and revocation of his clinical privileges were not appropriate. Complainant maintains that the Board’s ruling demonstrates that lack of competence was not the actual reason for his termination and that therefore his removal must be attributable to age discrimination. Complainant states that he was reinstated to his full duties as of September 28, 2018, and that he passed the mandatory 90-day review. In its decision, the Board noted that the narrative supporting the charge against Complainant stated that as a radiologist, Complainant was expected to have zero level 3s and zero level 4s of the ACR RADPEER Rating System. Level 3s were defined as “Discrepancy in interpretation/should be made most of the time” and Level 4s were defined as “Discrepancy in interpretation/should be made almost every time-misinterpretation of finding.”2 The Board stated that the prospective review conducted by NTP of Complainant’s diagnostic imaging found that among 100 of Complainant’s sample cases, Complainant had five reads rated as Level 3s and three reads as Level 4s. Nonetheless, the narrative against Complainant listed 15 Level 3 ratings and four Level 4 ratings because it included the findings from an initial NTP retrospective review of an unknown number of Complainant’s body image readings that yielded 10 Level 3 ratings and one Level 4 rating. The narrative further stated that these failures in accurately recognizing what the diagnostic imaging reads revealed were of clinical significance to patient health. The narrative noted that these failures compromised patient health and potentially, the veteran community’s trust in the Agency’s Oklahoma City Healthcare System. The Board stated that the expectation that an Agency radiologist should have zero Level 3s and zero Level 4s was not established in the evidence file or the administrative hearing. The Board explained that the RADPEER system was intended to be a learning tool rather than a punitive tool. According to the Board, an additional optional “a” rating connoted “unlikely to be clinically significant” and an additional optional “b” rating is “likely to be clinically significant.” The Board observed with regard to the 19 cases cited against Complainant that they were subsequently reviewed by an Agency staff radiologist in Oklahoma City at the request of the Director. With respect to the 15 Level 3 cases, this physician disagreed as to six cases, and in all six cases lowered the severity of the rating. 2 The record contains letters submitted by two radiologists stating that in 2016, before the NTP analysis, the RADPEER Rating System was updated to combine Levels 3 and 4 into Level 3. 2019003118 4 The physician reduced three cases to a 1, two cases to a 2, and one case from 3b to 3a.3 In terms of the Level 4 cases, the Agency physician disagreed with the NTP reviewer in each case as he issued two 1s and two 2as. The Board further pointed out that two of its board-certified radiologists reviewed the radiographic images at issue and both radiologists believed that Complainant identified the significant issues in all of these exams, but sometimes not explicitly and sometimes asking for further work-up or calling it by a different name. The Board noted that both radiologists believed there were no obvious missed diagnoses of clinical significance. The Board asserted that the discrepancy in the reviews attests to the subjective nature of the RADPEER Rating System as radiologists employ different styles of reading. The Board noted that such subjectivity is one of the reasons the American College of Radiology suggests the RADPEER Rating System be used as a learning tool rather than a punitive tool. The Board concluded that the use of the RADPEER Rating System was a one-time perfection standard which was unfair, unreasonable, and an obvious misuse of RADPEER. Hence, the Board concluded that the RADPEER Rating System cannot be the basis for an employee’s removal. Additionally, the Board determined that there was no evidence in the record that harm was done related to Complainant’s radiologic interpretations. The Board reasoned that the RADPEER Rating System cannot be depended upon for an indication of clinical significance as there was significant disagreement in the ratings between reviewers. Finally, the Board stated that there was no evidence in either the evidence file or submitted during the administrative hearing that the veteran community’s trust was compromised. In response, the Agency asserts that Complainant was removed and his privileges were revoked after 100 of his cases were reviewed by the NTP who determined his overall score did not meet the standard of review under the ACR RADPEER System. The Agency maintains that Complainant did not establish discrimination with respect to his removal. The Agency points out that the NTP is a reviewing organization outside the local Agency medical center. According to the Agency, neither of Complainant’s supervisors had the skill or training to review his work and had to rely on an outside reviewer. The Agency states that the reviewer with NTP was not aware of Complainant’s identity or his age. The Agency asserts that the NTP reviewer only reviewed Complainant’s work and assigned a score. The Agency reasons that although the DAB did not agree with NTP’s scoring, that does not establish discrimination on the part of its Oklahoma City employees as they relied on a third party to provide the radiological imaging read review. The Agency asserts that the record does not contain documentary evidence or corroborating testimonial evidence to support Complainant’s suggestion that NTP graded him inappropriately because of his age and provided others higher scores because of their age. 3 A rating of 1 is “Concur with interpretation” and a rating of 2 is “Discrepancy in interpretation/not ordinarily expected to be made (understandable miss)”. 2019003118 5 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., 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). Here, the Agency has articulated legitimate, nondiscriminatory reasons for Complainant’s removal and the revocation of his privileges. The Agency explained that it undertook these actions because an independent third-party reviewer determined Complainant committed too many errors and misses in reading films and scans, which were greater than acceptable, and greater than the standard set by the Department, as identified in national reviews of Complainant’s radiology reports. According to the Agency, these failures in accurately recognizing what the diagnostic imaging reads revealed were of clinical significance to patient health. The Agency asserted that it took action against Complainant also because his failures could compromise the veteran community’s trust in the Agency’s Oklahoma City health care system. We find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s removal and revocation of privileges. Complainant attempts to establish pretext by challenging the criteria underlying the analysis that led to his removal. The removal and revocation of privileges were triggered by the findings made under an interpretation of the RADPOOR Rating System. The DAB decision noted that Complainant’s Supervisor testified at the DAB hearing the expectation that an Agency radiologist can have zero Level 3 ratings and zero Level 4 ratings was an edict from the Chief Consultant for Radiology in the Agency’s Central Office, which applied specifically to a prospective sample of 100 of Complainant’s body imaging cases. In the Proposed Removal and Revocation of Clinical Privileges dated January 31, 2018, that was issued to Complainant, the Chief of Staff at the Oklahoma City facility stated that as a radiologist, Complainant was expected to have zero Level 3s and zero Level 4s of the RADPEER Rating System. However, the Supervisor testified there was no such standard within the Agency that a certain percentage of Level 3s will result in a suspension or removal. The Supervisor also testified there is no such standard among professional associations for radiologists. 2019003118 6 We observe that the DAB determined that the use of the RADPEER Rating System was a one- time perfection standard which was unfair, unreasonable, and a misuse of RADPEER. The Board cited the significant amount of subjectivity involved in assigning rating levels to the diagnostic imaging reads. The Board noted the second reviewer’s sharp differences in interpretative readings from that of the NTP reviewer. The second reviewer, unlike the NTP reviewer, registered no Level 4 ratings, and in fact lowered those ratings to two 1s and two 2as. This reviewer reduced five of the fifteen Level 3 ratings below Level 3. We further observe that the DAB stated that the RADPEER Rating System was not intended to be punitive but rather a learning tool. The DAB concluded that the RADPEER Rating System should not be the basis for an employee’s removal. The Commission acknowledges that there is support for the contention that the expectation of zero Level 3’s and zero Level 4’s developed by the Chief Consultant for Radiology in the Agency’s Central Office was not reflective of any sort of reasonable standard that was otherwise considered applicable to evaluating radiologists. However, the record lacks sufficient evidence that the standards were designed or applied with the intent to discriminate against Complainant or any other individuals based on their age. The review of Complainant’s diagnostic images was conducted by an independent third party. Complainant has presented insufficient evidence that the review or the subsequent decision to terminate Complainant was attributable to his age. We are mindful of Complainant’s contention that his Supervisor advised him to retire when his clinical privileges were suspended, but we do not find that this demonstrates discriminatory animus as the comment occurred after the imaging discrepancies were discovered. Based on the complete record, we find that Complainant has not established that any of the actions at issue were based on Complainant’s age. Hence, we find that no age discrimination occurred when Complainant was removed from his Radiologist position and his clinical privileges were revoked. CONCLUSION The Agency’s determination that no age discrimination occurred is AFFIRMED. 2019003118 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 2019003118 8 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 18, 2020 Date