0120121124
10-03-2012
De Quang Tran, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
De Quang Tran,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121124
Agency No. 200J-0437-2011101726
DECISION
On December 23, 2011, Complainant filed an appeal from the Agency's November 23, 2011, 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., 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General and Colorectal Surgeon at the Agency's Medical Center facility in Fargo, North Dakota.
In September 2010, Complainant and the Agency entered into a settlement agreement that indicated that Complainant would be allowed to resign, effective January 1, 2011, in lieu of termination. The record includes a copy of the SF-50 indicating that Complainant resigned from the Agency on that day.
On April 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Vietnamese), disability (physical),1 and age (50) when, on January 1, 2011, he was forced to resign (constructive discharge) from his position as a GS-15 Physician/Surgeon with the Agency.
The matter was accepted for investigation. The Investigator contacted Complainant several times asking for him to provide an affidavit in support of his complaint. The record showed that the Investigator sent Complainant an email on August 16, 2011, including a letter asking for medical documentation. The letter was also mailed by certified mail on August 19, 2011. On August 23, 2011, the Investigator sent Complainant a request for an affidavit via email. The same request was also sent by certified mail. The email was received by Complainant on August 23, 2011, and the letter was delivered on August 27, 2011. On August 31, 2011, the Investigator sent another email reminding Complainant of the request for an affidavit and asked that him to provide it by September 1, 2011. The same requests were sent certified mail to Complainant on the same date and received by Complainant on September 3, 2011. The Investigator noted in her report that she never received anything from Complainant. Despite the lack of information from Complainant, the Investigator continued the investigation by contacting the responsible Agency officials regarding the complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC 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). The decision dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to prosecute the complaint. In the alternative, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed. On appeal, Complainant provided, for the first time, an explanation of allegations of discrimination against the Agency. He asserts that in he was deployed overseas as part of the military reserves in 2007, where he was injured, treated and recovered. He asserts that when he returned to his position with the Agency in 2008, management did not believe he was as productive as he had been before his deployment and sought to get rid of him through a series of events. This eventually led to what Complainant characterized as an unjustified proposal to remove him in August 2010, forcing him to agree to resign in lieu of termination.
On appeal, Complainant does not provide any information regarding his reasons for failing to provide an affidavit to the Investigator. However, Complainant noted that he received the ROI and found it to be incomplete, inaccurate and false. Complainant argues that Agency issued its FAD based on the "incomplete, inaccurate and insufficient information." Therefore, Complainant filed the instant appeal.
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. (November 9, 1999) (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").
Dismissal
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(7). Our regulations provide, in relevant part, that it is grounds for dismissal "[w]here the Agency has provided the complainant with a written request to provide relevant information, or otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal." 29 C.F.R. � 1614.107(a)(7).
The Agency provided Complainant with a written advisory stating that Complainant had seven days to provide medical documentation and ten days to provide an affidavit during the investigation. However, this advisory did not comply with the explicit requirements of � 1614.107(a)(7). Therefore, we cannot uphold the Agency's decision to dismiss the complaint for failure to prosecute.
We note, however, that the Agency went on to address the merits of the case as provided in the remaining text of 29 C.F.R. � 1614.107(a)(7), which states, "[i]nstead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available." Therefore, the Commission shall review the Agency's finding of no discrimination.
Merits Determination
In analyzing a disparate treatment claim such as this one, where the Agency denies that its decisions were motivated by Complainant's race, national origin, age or disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he 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. Texas 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).
Upon review, we find that the Agency provided nondiscriminatory reasons for its decision to propose Complainant's dismissal from his position, which led to the agreement to allow him to resign in lieu of termination. Management stated that Complainant was extremely difficult to work with. The instant matter apparently began when Complainant was directed to stop placing what were considered inappropriate notations in a patient's file, and is asserted to have abandoned the patient despite the fact that the patient had a known, active surgical problem. As a result, an Administrative Board was convened to investigate his professional practice and behavior, which Complainant refused to cooperate with. This escalated, with Complainant refusing to meet with the Chief of Staff regarding the suspension of his privileges and a directed mental health examination. Facility police were called to escort him to the meeting. He refused to submit to the mental exam. Complainant also refused to return his office keys and badge while placed on leave, resulting in the Agency having to re-core the doors.
Once the Agency has articulated non-discriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the proffered reasons were a pretext for discrimination. Upon review of the record, we find that Complainant has failed to meet this burden. We note that Complainant was asked several times by email and certified mail to provide the Investigator with an affidavit in support of his claims of discrimination. He failed to do so. Therefore, because of the lack of evidence from Complainant, we find that he has not proven that he was discriminated against based on his race, national origin, age and/or disability.
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 (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:
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 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
October 3, 2012
__________________
Date
1 We note that Complainant did not provide medical information.
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0120121124
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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