Hipolito P.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0120141187 (E.E.O.C. Jun. 8, 2016)

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

Hipolito P.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120141187

Agency No. HHS-NIH-0078-2010

DECISION

On February 7, 2014, Complainant filed an appeal from the Agency’s January 29, 2014, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. Our review is de novo. 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 Contract
Anesthesiologist at the Agency’s work facility in Bethesda, Maryland.

On January 22, 2010, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of his age (67) when on December 31, 2009, he
was terminated from his position.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of
failure to state a claim. The Agency determined that Complainant was employed by a private
contractor, National Anesthesia Services (NAS), and was not an employee of the Agency.
Complainant filed an appeal with the Commission. In Complainant v. Department of Health
and Human Services, EEOC Appeal No. 0120101784 (July 1, 2011), the Commission found
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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that the Agency did not provide sufficient evidence in the record addressing whether
Complainant should be considered an Agency employee. We remanded the complaint to the
Agency so that it could supplement the record with appropriate evidence. The Agency issued a
new final decision and again determined that Complainant was not an employee. Complainant
subsequently filed an appeal with the Commission. In Complainant v. Department of Health
and Human Services, EEOC Appeal No. 0120114091 (February 3, 2013), we found that the
Agency exercised sufficient control over Complainant’s position to qualify as his employer or
joint employer for the purpose of the EEO complaint process. We reversed the Agency’s final
decision and remanded the complaint for further processing.

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).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reveals that Complainant was a Contract Anesthesiologist in the
Department of Anesthesis and Surgical Services (DASS), Clinical Center at the Agency facility
from January 2006 until December 31, 2009. Complainant was one of four contract
Anesthesiologists at the facility. Complainant stated that in July 2009, the Agency hired new
graduates as Anesthesiologists and the four on contract became concerned that their positions
could be terminated due to the new hires. Complainant stated that two contract
Anesthesiologists found other jobs. According to Complainant, on December 4, 2009, he was
informed by his contractor representative that his Supervisor had decided to terminate his
contract services. The Agency noted that Complainant claimed that on December 7, 2009, his
Supervisor told him that the remaining contract Anesthesiologist (approximately twenty years
younger than Complainant) had been selected to continue working in DASS, and a permanent
federal hire position would be created for her.

The Agency determined that Complainant set forth a prima facie case of age discrimination.
The Agency noted that the Supervisor explained that staffing decisions were based on patient
ratios. The Supervisor asserted that the ratios in the latter half of 2009 indicated that fewer
contract Anesthesiologists were needed, and that it subsequently became apparent that only one
contract Anesthesiologist was needed. According to the Supervisor, she requested that the
contractor representative decide which contract Anesthesiologist would no longer work at
DASS, but the representative declined, and therefore she chose to terminate Complainant’s
service contract.

The Agency stated that the Supervisor based her decision on the following factors: Each
Anesthesiologist’s “… competence; … performance;… conduct; ability to relate to surgeons,
patients, nurses, other Anesthesiologists, and other physicians in the Clinical Center; feedback
from surgeons, nurses, patients, Anesthesiologist, and other physicians in the [C]linical

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[C]enter about the performance and conduct of any Anesthesiologist; [and] … record of
professionalism.”

With regard to Complainant’s attempt to establish pretext, the Agency acknowledged that the
Supervisor initially did not respond to the question of why Complainant was selected for
termination. However, the Agency points out that it obtained a supplemental affidavit from the
Supervisor wherein she identified the factors that dictated her decision. The Agency admitted
that the Supervisor did not specify why the retained contract Anesthesiologist was a better
choice than Complainant in some or all of the listed areas. The Agency stated that the
Supervisor consistently asserted that she did not consider age in making her decision. The
Agency determined that Complainant failed to establish pretext.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his Supervisor knew he was a more qualified
Anesthesiologist than his colleague who was retained. Complainant challenges the veracity of
the statements of various Agency personnel. Complainant claims that a physician and a nurse
gave untrue testimony concerning him. Complainant argues that his Supervisor’s statements
negate her credibility. According to Complainant, the Supervisor informed him that he would
be terminated in order to provide funding for his colleague until February 2010. Complainant
maintains there was no funding shortage and that his colleague received full compensation from
the contract until September 2010 when her position was converted to a federal hire.
Complainant states that the Supervisor initially told the EEO Counselor that the contracting
company decided who would be terminated but that in her affidavit in March 2013, she instead
stated that she made the decision.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

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We shall assume arguendo that Complainant set forth a prima facie case of age discrimination.
The Supervisor explained that Complainant was terminated from his contract Anesthesiologist
position based on the patient ratios in the latter half of 2009 indicating that fewer contract
Anesthesiologists were needed, and that subsequently it became evident that only one contract
Anesthesiologist was needed. According to the Supervisor, she based her decision on whom to
retain by evaluating the two Anesthesiologist’s competence, performance, conduct; ability to
relate to surgeons, patients, nurses, other Anesthesiologists, and other physicians in the
Clinical Center; feedback from surgeons, nurses patients, Anesthesiologist, and other
physicians in the Clinical Center about the performance and conduct of any Anesthesiologist;
and record of professionalism. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its decision not to retain Complainant.

Complainant seeks to establish pretext by stating that his experience rendered him more
qualified than the retained contract Anesthesiologist. Complainant also points to jokes being
made about his age at unit meetings. Complainant maintains that his professionalism improved
in the two years preceding his termination. It is clear that Complainant has extensive
experience as an Anesthesiologist. However, that factor by itself does not automatically make
him more qualified than the retained Anesthesiologist. The Supervisor stated that she
considered several specific factors as mentioned above in deciding who should be retained.
The record indicates that several medical personnel at the facility expressed negative opinions
about Complainant. We observe that a senior nurse practitioner stated in her affidavit that she
provided feedback to the Supervisor regarding her concerns about Complainant’s impolite and
disrespectful behavior. The nurse stated that Complainant’s communication skills were poor
and information on patients’ condition coming from the operating room was commonly not
complete or inaccurate. An Operating Room Nurse Specialist stated in her affidavit that she
spoke to the Supervisor about Complainant leaving patients unattended for long periods of time
while the patient was under anesthesia. This nurse asserted that she informed the Supervisor
that Complainant would have loud outbursts of inappropriate language during surgery. In
contrast to Complainant’s instances of questionable conduct, there was no testimony indicating
that the retained Anesthesiologist exhibited a lack of professionalism. We find that
Complainant has not established that the Agency’s explanation for its decision to terminate him
was pretext intended to mask discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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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.

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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

June 8, 2016
Date