Clinton C.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 12, 2018

0120172540 (E.E.O.C. Oct. 12, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Clinton C.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172540

Agency No. 200J-0647-2016102273

DECISION

On July 10, 2017, 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
April 17, 2017, final decision 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Pain Management
Physician, VM-0602-15, at the Agency’s John J. Pershing VA Medical Center facility in Poplar
Bluff, Missouri.

On April 25, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:

1. As of February 19, 2016, Complainant did not receive a performance
appraisal/proficiency;

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.
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2. As of February 19, 2016, management did not communicate with him;

3. During 2016 (multiple dates), he was subjected to “marginalization” and
“deliberate indifference;” and

4. Effective April 28, 2016, he was separated from federal employment.

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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

In its decision, the Agency found that management articulated legitimate, nondiscriminatory
reason for its actions. Regarding claim (1), failure to provide his performance appraisal, the
Agency found that Complainant’s supervisor (S1) issued Complainant’s performance appraisal for
the period of May 31, 2015 through September 30, 2015 on October 23, 2015, and Complainant
signed the appraisal on November 29, 2015. Additionally, S1 completed a second evaluation on
March 24, 2016, while Complainant was out on administrative leave.

As for Complainant’s termination, the Agency found that after convening a Professional Standards
Board (PSB) due to numerous patient and employee complaints, management terminated
Complainant’s employment at the recommendation of the PSB. Noting that Complainant failed
to participate in the investigation of the complaint, the Agency reasoned that Complainant did not
demonstrate by a preponderance of the evidence that management’s articulated reasons were based
on discriminatory animus.

Finally, the Agency noted that with regard to Complainant’s reports of a hostile work environment,
Complainant failed to establish that the identified events occurred, with the exception of his
termination. The Agency added that Complainant failed to clarify or provide support for the
allegation that he was subjected to “marginalization” and “deliberate indifference.” Nonetheless,
the Agency concluded that there was no evidence that the alleged incidents were based on
Complainant’s protected classes. Accordingly, the Agency found that Complainant did not
establish that he was subjected to discrimination, reprisal, or a hostile work environment as alleged.
The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his EEO complaint was not processed properly. In addition,
Complainant argues that Agency officials provided false statements in their affidavits. Further,
Complainant claims that he continues to suffer retaliation and a hostile work environment.
Accordingly, Complainant requests that the Commission reverse the final decision.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

As an initial matter, the Commission notes that Complainant raised challenges to the manner in
which his complaint was processed. Allegations of dissatisfaction with an agency's processing of
a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5,
IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug.
27, 2013). When a complainant raises allegations of dissatisfaction regarding the processing of
his or her pending complaint, the Agency official responsible for the quality of complaints
processing must add a record of the complainant's concerns and any actions the Agency took to
resolve the concerns, to the complaint file maintained on the underlying complaint. If no action
was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action.
EEO MD-110.

Here, on several occasions, Complainant contacted the Agency’s Office of Resolution
Management (ORM) expressing dissatisfaction with how the EEO Counselor communicated with
him and addressed his claims. On July 14, 2016, the ORM’s Policy and Compliance Manager
responded to Complainant addressing his concerns. The Policy and Compliance Manager noted
that several ORM employees unsuccessfully attempted to contact Complainant to receive better
clarity regarding one of his claims. The claim regarding “marginalization” was initially dismissed,
but was later accepted and included as part of Complainant’s overall hostile work environment
claim. The letter further explained the EEO complaint process and Complainant’s avenues for
appeal.

Complainant has the burden of showing improper processing. The Commission has reviewed the
entire record and finds that the Agency properly addressed Complainant’s allegations in
accordance with EEO MD-110. Moreover, we note that there is no indication of improper
processing of Complainant's complaint by the EEO Counselor.

Disparate Treatment

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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 in this case, however, since the Agency has 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). 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); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

In the instant case, we find that the Agency proffered legitimate, nondiscriminatory reasons for its
actions. In terms of claim (1), Complainant’s allegation that he had not received a performance
appraisal as of February 19, 2016, S1 reported that Complainant received a performance evaluation
for the period of May 31, 2015 through September 30, 2015, in October 2015, and explained that
Complainant received a rating of “high satisfactory” in each category. S1 noted that Complainant
questioned why he did not receive a rating of “outstanding” and that Complainant delayed signing
the performance appraisal until November 29, 2015. The record corroborates S1’s testimony and
further includes a performance evaluation for the period of October 1, 2015, through March 24,
2016, on which Complainant received a “satisfactory” rating in terms of clinical competence, but
a “low satisfactory” rating in the areas of personal qualities and overall evaluation. Similarly, the
record reveals two Professional Practice Evaluations, which span from June 2015 through
December 2015. Moreover, December 2015 email correspondence between Complainant and his
supervisor reveals that Complainant specifically referenced his performance review and the tasks
that he would need to complete to receive a rating of “outstanding” in the future. In a subsequent
email, on January 27, 2016, Complainant acknowledged that he signed a performance review in
November 2015. Accordingly, we find that Complainant has failed to establish that he had not
received a performance appraisal as of February 19, 2016.

Regarding claim (2), that as of February 19, 2016, management did not communicate with
Complainant, we find that not only does the record reflect ongoing communication between
Complainant and management, the record shows communication between Complainant and
individuals across multiple departments within the facility. The record is replete with email
communications between Complainant and management. Similarly, S1 testified that he
communicated with Complainant at least seven or eight times per day. Moreover, on appeal,
Complainant has not provided any evidence to support his allegation that management failed to
communicate with him.

Turning to claim (3), Complainant’s allegation of “marginalization” and “deliberate indifference,”
the record shows that Complainant failed to elaborate on this claim. In any event, S1 reported that
Complainant never made a claim of marginalization to him, but S1 did note that upon receiving a
Proficient Practice Evaluation, an appraisal where Complainant’s work was shared for evaluation
by pain providers from other centers,
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Complainant became defensive and stated that the evaluators did not know what they were doing
and were trying to marginalize him. The Medical Center Director (S2) stated that while
Complainant apprised her of multiple concerns, he never complained of marginalization or
deliberate indifference. After a thorough review of the record, we find that Complainant has failed
to provide evidence of marginalization or deliberate indifference.

As for Complainant’s April 2016 termination alleged in claim (4), both S1 and S2 reported that
the PSB was convened in April 2016 due to increasing concerns from multiple parties that
Complainant was creating a hostile work environment. Documents submitted for the instant
complaint show that on March 24, 2016, S1 requested a special convening of a PSB to “review the
conduct of [Complainant] that represents a lower standard of conduct than expected of members
of the medical staff.” According to S2, the PSB was the only way to address conduct concerns for
probationary employees, such as Complainant.

On the following day, Complainant received notification that the PSB would be held to review
deficiencies in Complainant’s conduct regarding writing inappropriate comments in patient
records; disrespectful comments to and about patients, and disrespectful conduct to other
personnel. In support of these allegations, the PSB reviewed Reports of Contact from multiple
individuals complaining about interactions with Complainant. For example, documentation
submitted to the PSB revealed that multiple employees, including the Police Chief, requested not
to meet with Complainant in a one-on-one capacity. At the conclusion of the PSB’s consideration
of the evidence, the PSB decided to terminate Complainant’s employment. We find overwhelming
support for the PSB’s report that Complainant’s termination was the result of poor interactions
with multiple employees and departments throughout the facility.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. Complainant has
not provided any evidence that would establish by a preponderance of the evidence that the
Agency’s explanation for Complainant’s termination was untrue. In support of his appeal,
Complainant alleged that witness reports provided by the Agency were fabricated and coerced.
However, the record, including multiple email chains and witness statements, supports the witness
reports and Complainant failed to provided evidence of discriminatory or retaliatory animus. As
a result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

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Hostile Work Environment

To establish a claim of harassment, a complainant must show that: (1) he belong to 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 his
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 987 (11th Cir. 1982).

Regarding Complainant’s harassment claim, we find that under the standards set forth in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of harassment must fail. A
finding of harassment is precluded by our determination that Complainant failed to establish that
any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v.
United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

As such, we find that Complainant did not establish that he was subjected to discrimination,
reprisal, or a hostile work environment as alleged.

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 decision finding no discrimination.

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
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(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.

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.

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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

October 12, 2018
Date