0120152474
02-25-2016
Edgardo D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Edgardo D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152474
Hearing No. 450-2013-00143X
Agency No. 2003-0549-2012102670
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 26, 2015 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Registered Nurse at the Agency's North Texas Veterans Affairs Medical Center in Dallas, Texas.
On July 25, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of national origin (African-American) when:
on or about March 19, 2012, the Director and Nurse Manager terminated him from his position as Registered Nurse.
After the investigation, Complainant timely requested a hearing and the EEOC Administrative Judge (AJ). Following the March 17, 2015 hearing, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of national origin.
In reaching this conclusion, the AJ noted that on June 14, 2011, while Complainant was on duty in the 3 North unit, he was contacted by telephone by a Nursing Assistant. At that time, the Nursing Assistant was filling in at 5 North unit. The Nursing Assistant notified Complainant about a patient who had collapsed in one of the hallways in the 5 North unit. The record reflects that Complainant arrived at 5 North unit approximately three minutes later. At this point, the patient was unresponsive. Complainant and the Nursing Assistant spent the next ten minutes trying to decide what to do before initiating basic life support, which the Agency thereafter determined had been inadequate. Complainant called for the Code Team to assist with the emergency. Thereafter, Complainant provided mouth-to-mouth resuscitation and chest compression. Once the Code Team arrived, it took over the life support efforts. The record reflects that approximately one hour within the initial collapse, the patient was pronounced dead by the Code Team.
The AJ noted that after a Safety Manager viewed the video recording of what occurred with the patient in the hallway after he collapsed, he expressed his concerns to Agency management. The Deputy Chief of Staff was requested to review the video and determined that the resuscitation efforts by Complainant and Nursing Assistant were inadequate. A subsequent investigation was conducted by the Administrative Investigation Board (Board) over the patient's death. The report found deficiencies in many areas in the regular and emergency case of the patient. The record reflects that the Board concluded that there was a delay in "identifying and properly managing a medical emergency (CPR) based on evidence obtained from an actual video recording of the timed sequence of event that transpired on 5N." The Board also noted that according to Complainant and the Nursing Assistant, they maintained their actions during the June 14, 2011 incident were appropriate.
The AJ noted that by letter dated December 12, 2011, the Chief of Mental Health (Chief) proposed Complainant be removed from Agency employment based on his emergency care performance in connection with the collapsed patient. The Chief met with Complainant and his representative for approximately one hour concerning Complainant's response to the proposed action. Thereafter, the Chief prepared a memorandum explaining the arguments made by Complainant and his reasoning for endorsing the proposed discharge. The Director issued Complainant the letter of removal effective March 19, 2012.
The AJ noted that the Nursing Assistant was also removed for his performance in connection with the patient's emergency case. Unlike Complainant, the Nursing Assistant had Merit Systems Protection Board (MSPB) appeal rights, and he was returned to work by the MSPB Administrative Judge. The AJ determined that the standards and burdens are different in that forum.
The AJ noted that during his testimony, the Deputy Chief of Staff (Deputy) stated that he was the concurring official concerning Complainant's termination. Specifically, the Deputy stated that his recommendation was to substantiate the charges that were made against Complainant, and "that I supported the recommended termination...my recommendation, based on the evidence was presented, was that that recommendation was supported by the fact - - by the evidence provided." The Deputy stated that based on the viewing of the tape, he found Complainant's actions to be inappropriate. The Deputy stated "the idea is to get the maximum degree of resources and trained personnel there as quickly as possible because you have a patient who is in imminent danger, if not already clinically without a pulse... clinically dead, if your goal is to resuscitate them with minimal damage."
The Deputy stated that when a medical professional comes "across a patient who is down and becomes unresponsive, you are expected to assess the patient quickly, activate the ACLS system and then render CPR, and that doesn't matter if it's in the parking lot, in the restaurant downstairs in the basement, or on a residential unit. There's a basic expectation, everybody is trained to do it and they have to demonstrate those skills, physically demonstrate them to get the BLS certification." The record reflects that after reviewing the tape, the Deputy called in legal representation and other parties from Mental Health and Human Resources to discuss how to deal with the incident from a disciplinary perspective and to ensure that a similar incident does not occur again.
Further, the Deputy stated that during his oral response, Complainant did not feel he did anything wrong and that he would not have done anything differently. Moreover, the Deputy stated that he did not discriminate against Complainant based on his national origin.
The Director stated that Complainant was terminated from Agency employment for failure to perform and failure to response appropriately. For instance, the Director stated that the Agency's policy is that if a licensed practitioner fails to perform adequately, then the licensed practitioner is subjected to termination.
The Agency, in its final order, adopted the AJ's finding of no discrimination.
Complainant, on appeal, argues that the AJ erred finding no discrimination. Complainant states that he was not allowed to have his witnesses testify during the hearing. Complainant further states "the relevance of these witnesses was to show through the report of what each witness saw on different actual incidents that occurred clearly in their vision without any requested observation on my part, and did show discriminatory actions and or behaviors that were directed towards me by my immediate supervisor [supervisor]."
ANALYSIS AND FINDINGS
As an initial matter, we again note that the AJ chose to allow one witness testified by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of one witness's testimony by video-conference by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold the video-conference hearing for one witness; and that the record, including the hearing transcript, does not reflect that the video-conference was so technically deficient as to preclude the AJ from rendering a reasoned decision, notwithstanding the appellate arguments of Complainant to the contrary.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond his bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
February 25, 2016
__________________
Date
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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