0120140508
09-22-2016
Enrique R.,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
Enrique R.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140508
Hearing No. 531-2010-00302X
Agency No. 200405122009100118
DECISION
On November 13, 2013, Complainant filed an appeal from the Agency's October 23, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant was not discriminated against when he was removed from the Agency; and that he was not subjected to a hostile work environment based on his age and disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician Assistant (PA) at the Agency's Cambridge Veterans Affairs Outpatient Clinic in Cambridge, Maryland. In 2002, Complainant's duties were changed due to concerns about his clinical knowledge. Complainant was placed on a Process Improvement Plan (PIP), and on August 26, 2002, his then first line supervisor issued a written evaluation noting the areas of his deficiencies. On March 13, 2003, Complainant obtained a new first line supervisor (S1) (50 years old, no disability), and was placed on another PIP. Complainant's third line supervisor (S2) (52 years old, no disability) also directed him to provide documentation regarding his learning disability so that the Agency could consider providing a reasonable accommodation, if needed. Complainant did not request a reasonable accommodation.
In early 2006, Complainant submitted a re-credentialing application to the Agency's Physician Assistant Professional Standards Board ("Board"). As a part of the process, S1 provided a statement noting that Complainant had not worked in direct patient care for approximately two years; and that he recommended administrative and education duties. Another doctor (DR1) (48 years old, not disability) stated that Complainant did "not have the ability to function as a [PA] in providing patient case," and another doctor (DR2) (unknown age, unknown disability status) stated that he did not believe that Complainant had the "expertise to function as a [PA]." On June 26, 2006, the Board rejected his application because it found that he was not functioning at a level of expertise required of a PA. Complainant responded that he would obtain evidence of his competence, and was planning to take the certification exam.2
On an undisclosed date, Complainant alleged that DR2 stated that they would name a new clinic after Complainant. From 2007, Complainant alleged that he was overworked in a laboratory. In April 2007, Complainant stated that he discovered that a vial of blood was missing; and that S1 accused him of "mixing up" the blood, and removed him from the lab. S2 stated that she removed Complainant from the lab because he made errors inputting data into their system, leading to some patients having two entries, while others had no entry.
In June or July 2007, Complainant stated that another doctor (DR3) (unknown age, unknown disability status) recommended that he have his own clinic. Complainant alleged that DR3 presented the recommendation to S2, who rejected the idea. S2 stated that DR3's statement read that Complainant was "unable to function autonomously," which did not support the idea that Complainant have his own clinic. In October 2007, DR1 allegedly asked Complainant about his property because he was interested in real estate, and was impressed with Complainant's knowledge.
In January 2008, Complainant alleged that a Nurse Manager (NM) (53 years old, no disability) got him "thrown out" of his office. The NM stated that new services and new clinics made office space a premium, and that even the doctors did not have their own offices. Complainant alleged that in June and July of 2008, the NM wrote multiple complaints about him, alleging "petty things," such as failing to wipe off the counter. Complainant stated that S1 counseled him, and informed him that the NM was taking her complaints to S2. The NM stated that whenever she received complaints regarding Complainant, she forwarded them to his supervisors. Complainant informed S1 that he felt harassed by the NM. S2 stated that in response to Complainant's complaints that the NM was unduly harsh, they moved him to a different clinic.
Complainant alleged that between June and September 2008, S2 failed to introduce him to new staff members. S2 stated that her worksite is two and a half hours away, and that she would only introduce new staff members if she happened to be onsite.
On May 21, 2008, the Board issued its determination on Complainant's reconsideration of his scope of practice. It found that Complainant had not presented any evidence of his competence, and recommended this his scope of practice not be reinstated. Specifically, the Board found that Complainant had not presented any evidence of training; had not provided evidence of successful completion of the certification exam; had not provided peer evaluations attesting to competence; had not provided a physician evaluation attesting to competence; and had not provided evidence of mental and physical capabilities to perform the duties of a PA.
On July 7, 2008, S2 proposed removing Complainant based on the Board's decision to disapprove his scope of practice. The S2 stated that without the approved scope of practice, Complainant could not work as a PA at the Agency. On August 22, 2008, Complainant presented an oral response to his proposed removal. He stated that he was not required to provide certification; he was unable to provide peer evaluation because he had not been allowed to function as a PA; and he provided proof of training. Complainant also stated that he did not request any job accommodation due to a disability.
On October 1, 2008, the deciding official (DO) (61 years old, no disability) issued a decision sustaining Complainant's removal. The DO stated that in making his decision, he considered Complainant's oral reply, and other factors, including his past work history and years of service.
On January 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against, and subjected him to a hostile work environment, on the bases of disability (dyslexia), and age (52) when:
1. During 2002, S2 rescinded Complainant's role as a PA, and effectively eliminated his ability to meet credentialing responsibilities;
2. On June 26, 2006, S2 took Complainant's credentials away, and he had no physician review and no peer review;3
3. During 2006, Complainant was told by a coworker that a new clinic was being named after him;
4. Between September 2007 and April 2008, Complainant was overworked in the lab, set up and later kicked out of the lab based on a false accusation;
5. In June and July 2007, S2 refused the idea of Complainant having his own diabetes and hypertension clinic;
6. In October 2007, the DR1 commented about Complainant's property holdings;
7. On January 9, 2008, the NM tried to eliminate Complainant from having an office and he was switched between offices;
8. Between June and July 2008, S1 informed Complainant that the NM wrote multiple complaints about him, and these complaints went to S2;
9. During June 2008 and September 2008, S2 failed to introduce new staff members and Complainant felt ostracized; and
10. On July 7, 2008, S2 recommended Complainant for termination and effective October 10, 2008, Complainant was discharged from his position.
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 AJ. Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's October 7, 2010, motion for a decision without a hearing, and issued a decision without a hearing on September 26, 2013.
The AJ found that Complainant had not established a prima facie case of discrimination based on age and disability because he did not show that he was treated less favorably than a similarly situated person outside of his protected classes. Additionally, the AJ found that Complainant had not set forth any evidence that his age and disability motivated the Agency's decision to remove him.
The AJ also found that Complainant had not shown that he was subjected to a hostile work environment because he did not show that the purported actions were related, or based on, his age or disability; and that the actions did not rise to the level of creating a hostile work environment. The AJ determined that the actions concerned discrete work related occurrences that could not support a finding of hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal, and submitted a brief in support of his appeal on December 12, 2013. The Agency filed an opposition brief on January 16, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that there is no basis for issuing a decision without a hearing. He also complains of the delays in the hearing process, and argues that the AJ's decision contains "boilerplate language with no explanation or analysis of his claims."
Regarding the merits, Complainant alleges that he had considerable difficulty demonstrating his PA skills because he had not been allowed to work as one since 2002. Additionally, Complainant argues that the Agency did not discuss reasonable accommodation to give him a fair opportunity to obtain his credentials. Complainant also argues that he was harassed when his professional duties were removed; he was repeatedly threatened with removal; and ultimately fired.
The Agency counters that Complainant did not respond to its Motion for a Decision Without a Hearing, and that would have been the time to raise arguments and provide evidence showing that a hearing was necessary. The Agency also argues that the AJ's decision is well supported by the record, and asks the Commission to affirm its final order adopting the AJ's finding.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
Decision Without a Hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
On appeal, Complainant argues that he has waited four years, and did not have an opportunity to provide input prior to the issuance of the AJ's decision, and that he "deserves to have his case heard." Upon review of the record, we find that Complainant had an opportunity to respond to the Agency's Motion for a Decision Without a Hearing, but did not respond. We note that while Complainant's attorney did not initially receive correspondences, the AJ reissued his acknowledgement and order regarding the Agency's motion to correct the error, and extended the deadline for Complainant to respond to the motion, which he did not do. Complainant provided copies of his correspondences sent to the AJ where he referenced the Agency's motion on October 10, 2011; February 29, 2012; June 4, 2012; January 3, 2013; and September 13, 2013. However, he did not raise any genuine facts in material dispute in any of these letters to the AJ; nor has he raised any on appeal. As such, we find that the AJ properly issued a decision without a hearing.
As an initial matter, we find that it is unclear if Complainant is alleging that the Agency discriminated against him on the basis of disability when it failed to discuss providing a reasonable accommodation. However, this decision will not address that claim because the Commission cannot address an issue raised for the first time on appeal.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on age and disability; we find that the Agency articulated legitimate, non-discriminatory reasons for removing him. The DO stated that he decided to remove Complainant based on feedback he received regarding Complainant's performance. We note that the record contains multiple statements from various Agency doctors stating that they did not believe that Complainant had the skills necessary to perform the duties of a PA. The DO also stated that S3 informed him that she felt that leaving Complainant in his position "would be compromising the healthcare of our veterans." Additionally, the DO stated that they removed some of Complainant's duties to allow him to complete additional education, and to take the certification exam. The DO stated that the Agency gave Complainant a number of years to do this, and that he was unable to obtain his credentialing from the Board.
Next, we find that Complainant made bare assertions that his management officials discriminated against him based on his age and disability, which are insufficient to prove pretext or that their actions were discriminatory when they removed him. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that Complainant did not establish that the decision to remove him was based on his age or disability.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
In regards to Complainant's allegation that he was subjected to a hostile work environment, we find that, even assuming, arguendo, that the events occurred as Complainant described and were unwanted, he has not shown that the conduct occurred because of his protected classes. In regards to the NM's alleged harassing conduct, Complainant stated that he did not tie her actions to his age or disability, and that he "didn't know what it was from." We also find that many of the instances of alleged harassment were related to Complainant's performance and workplace conditions. Additionally, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on his age 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 order adopting the AJ's decision without a hearing finding that Complainant was not discriminated against when the Agency removed him; and that it did not subject him to a hostile work environment based on his age or disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
__9/22/16________________
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.
2 Complainant was hired at a time when the certification exam was not necessary, and he was not required to take this exam.
3 While S2 served on the Board, the decision to not re-credential Complainant was made by the entire Board.
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