Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 24, 2014

0120122481 (E.E.O.C. Jan. 24, 2014)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120122481

Hearing No. 530-2009-00280X

Agency No. 200H-0642-2008104492

DECISION
Complainant filed an appeal from the Agency’s final order dated April 18, 2012, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND
In her complaint, dated December 2, 2008, Complainant, a Staff Physician at the Philadelphia
Veterans Administration Medical Center, Philadelphia, Pennsylvania, alleged (as defined by
the EEOC Administrative Judge) discrimination (including harassment) based on sex (female),
national origin (East Indian), age (over 40), race, and in retaliation for prior protected activity
when: (1) in August 2008, she was detailed from her position as Chief of Pathology, subjected
to an Administrative Board Investigation, and learned that she was being underpaid; and (2)
she received a rating of less than satisfactory regarding one element of her annual performance
in December 2008, and was reassigned, permanently, from the position of Chief of Pathology
to Staff Pathologist. Neither party has challenged the framing of the complaint. Upon
completion of the investigation of the complaint, Complainant requested a hearing before an
EEOC Administrative Judge (AJ). On March 29, 2012, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

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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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
Detail, Administrative Board Investigation, Reassignment, and Rating

:
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed in the Department of Pathology and Laboratory Medicine at the Agency’s
Philadelphia Veterans Administration Medical Center, Philadelphia, Pennsylvania. Prior to the
alleged incidents, Complainant was the Chief Pathologist and Director of Laboratory
Medicine, and she was responsible for running the laboratory and in charge of a research
study, as a principle investigator, related to patients who had “Warfarin” genetic testing
performed.

The Medical Center Director, Complainant’s second level supervisor (S2), stated that he
authorized Complainant’s detail at issue. Specifically, S2 stated that on July 30, 2008, a
patient came to their laboratory to have blood drawn to check his levels of a powerful drug
known as “Coumadin” or “Warfarin” and the phlebotomist drew two vials of blood. The
patient questioned why two vials of blood was needed and mentioned the fact that he was never
requested to participate in a research study and never gave an informed consent. The patient
brought the matter to Complainant, and then to Complainant’s first level supervisor (S1), the
Medical Center Chief of Staff, and S1’s Administrative Assistant. The patient, not satisfied
with the information provided by Complainant and S1, ultimately notified the news media and
there was a newspaper article about the problem concerning a research study conducted in their
Medical Center.
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S2 indicated that he learned about the foregoing incident minutes after the patient left the
Medical Center and inquired of his research staff about the research study done in the Medical
Center. S2 was informed by the Research Compliance Officer that the research protocol was
authorized by the IRB (Institutional Review Board) and Complainant was listed as the principle
investigator of record on the research protocol. S2 was also informed that the research
protocol did not allow for gathering of blood specimens from anybody, rather only allowed a
look back of existing medical records of patients, after those records were purged of
identifiers. Due to the serious nature of the ethical violation which could potentially shut down
research for the entire Medical Center, he notified the Office of Research Oversight and
convened the alleged Administrative Board of Investigation to find out about the research at
issue. The Agency’s policy provided that whenever there was a Board of Investigation and it
involved patient care or allegations of patient abuse, employees under investigation should be
detailed out of their particular lab. S2 indicated that he decided to detail Complainant out of
her regular duties temporarily, and to limit access to her office in order to preserve the
integrity of the investigation.

After the completion of the Board Investigation, including Complainant’s interview, the three
panel Board members, finding Complainant’s conduct unprofessional, recommended to S2 that
administrative action should be taken against Complainant. Despite Complainant’s
contentions, the Board rejected her position that she was not responsible for the alleged
offenses. Taking into consideration the Board’s recommendation and the serious breach in the
research on the part of Complainant, described above, S2 stated that he gave Complainant an
unsuccessful performance rating for the research element of her performance evaluation and
permanently reassigned her to a Staff Pathologist position. Based on the foregoing, the AJ
determined and we agree that S2 honestly and reasonably believed that Complainant failed to
properly exercise her responsibilities as the Medical Center’s Chief of Pathologist and
Laboratory Medicine and Principal Investigator on an institutionally approved research project.
Furthermore, we find that Complainant failed to show that she was treated less favorably than
a similarly situated employee under similar circumstances.

Complainant’s Pay

:
Complainant claimed that she was underpaid. Complainant claimed that her pay was lower than
a new Chief Pathologist, male, who replaced her, at the Tier 2 level. The AJ stated that
during the relevant time period, the Agency Medical Center set physician pay and grade level
in accordance with the benchmark set by the American Association of Medical Colleges
Survey. The AJ also indicated that the Agency convened a panel of three physicians along
with a Human Resources Department consultant to evaluate newly hired physician’s
credentials, experience, and academic credentials in relation to current pay ranges available in
community or area academic medical centers as indicated by the Survey. The AJ stated that
the Agency also utilized the criteria related to a physician’s academic credentials and position
at the Medical College level.

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Specifically, S2 indicated that although Complainant had the title of Chief Pathologist, she did
not have the academic credentials justifying higher pay. S2 indicated that the new Chief
Pathologist received higher pay because he had an appointment as either Associate Professor or
full Professor at the University of Pennsylvania, School of Medicine, whereas Complainant did
not have a high level academic faculty position and served, if at all, at the instructor level.
Complainant does not dispute this.

The Agency Human Resources (HR) Director further indicated that Complainant was properly
paid at the Tier 2 pay level, as the new Chief Pathologist was paid. Specifically, the HR
Director stated that in their Medical Center, non-supervisory physicians were paid at the Tier 1
level; the very top of the Medical Center’s physicians, Associate Chiefs of Staff, including the
Heads of Medicine, Surgery, and Clinical Support, which would be Complainant’s supervisor,
were paid at the Tier 3 level; and everyone else in between were paid at the Tier 2 level, as
Complainant was paid. The HR Director indicated that during the relevant time period,
Complainant’s base pay was $131,937.00 due to her longevity in the Medical Center and her
market pay was $46,457.00 based on her specialty and her particular skills. The new Chief
Pathologist’s base pay was $102,975.00, lower than Complainant’s, but his market pay was
$104,368.00 due to his greater qualifications determined by the pay panel review.
Specifically, the HR Director noted that the new Chief Pathologist was a faculty member of
Baylor College of Medicine, held a Ph.D. in addition to an M.D., and was involved in several
research projects. Complainant does not dispute this.

Based on the foregoing, the AJ determined and we agree that Complainant offered no evidence
contrary to the Agency’s legitimate, nondiscriminatory reasons for her pay. See 29 U.S.C.
§206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Kouba v. Allstate
Insurance Co., 691 F.2d 873 (9th

Cir. 1982). The AJ also determined and we agree that
Complainant offered no evidence indicating that any physician of the Medical Center who was
similarly situated to her and possessed similar academic credentials was treated more favorably
with regard to pay and grade. With regard to her claim of harassment, we agree with the AJ’s
determination that Complainant failed to establish the severity of the conduct in question or that
it was related to any protected basis of discrimination. Therefore, we find that Complainant
failed to show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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), at 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 77960, Washington, DC 20013. 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

(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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court does not extend your time in which to file a civil action. Both the request and
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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

Date
January 24, 2014