Kory V.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 11, 2016

0120143087 (E.E.O.C. Feb. 11, 2016)

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

Kory V.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143087

Hearing No. 520-2013-00117X

Agency No. 200H-0523-2012102350

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 25, 2014 final order 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at
the Brockton Campus of the VA Boston Healthcare System in Brockton, Massachusetts. On
May 4, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against and subjected him to a hostile work environment in reprisal for prior protected EEO
activity when:

1. On February 9, 2012, Complainant received a poor performance evaluation from
his supervisor (S1);

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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2. On February 9, 2012, the Deputy Chief of Staff told Complainant that he received a
negative performance assessment by the Professional Standards Board;

3. On February 9, 2012, the Deputy Chief of Staff informed Complainant that he
would be the subject of a Focused Professional [Practice] Evaluation;

4. On February 9, 2012, the Deputy Chief of Staff informed Complainant that the re-
certification cycle for review of his privileges would be shortened from two years to
one year, potentially causing Complainant to lose his clinical privileges;

5. On May 9, 2012, Complainant was reassigned from Staff Physician in Geriatrics
and Extended Care to Staff Physician in Occupational Health Service, resulting in a
limitation of clinical work responsibilities.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on July 17, 2014.

In the decision, the AJ determined that the Agency had articulated legitimate, non-retaliatory
reasons for its actions. Specifically, regarding claims (1) and (2) Complainant received a poor
performance evaluation for the following reasons: management had received complaints from
families that he was perceived as too rushed and that there was no communication on the plans
of care; Complainant failed to follow through on abnormal labs and x-rays; Complainant
displayed a lack of planning for care, failed to remove catheters in a timely manner, failed to
engage in active discharge planning, and failed to ensure that appropriate appointments were
made for specialty care; and Complainant failed to submit complete documentation of patient
care issues, as well as documentation of active planning and involvement in the overall care of
the patient. Complainant’s supervisor (S1) stated that Complainant was regularly counseled
regarding these issues. The Deputy Chief of Staff added that a chart review uncovered 33
instances of ongoing issues with incomplete follow-up on abnormal labs, incomplete follow-up
on code status, incomplete examination of veterans/documentation of exam, and deficient
follow through on several veterans who had a change in clinical status.

The Professional Standards Board gave Complainant a negative review after it reviewed
Complainant’s cases in February 2012. The Board’s minutes indicated that the review of
Complainant’s ongoing Professional Practice Evaluation data indicated that Complainant did
not meet or needed improvement in the six areas of general competence. The Board expressed
great concern regarding serious problems that patients developed that might have been
identified earlier or avoided entirely with more proactive medical care. In some instances,
Complainant’s patients needed to be transferred out of the facility urgently to other VA
facilities or an outside facility.
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As to claim (3), management confirmed that a Focused Professional Practice Evaluation was
initiated for the following reasons: complaints from families regarding Complainant’s paucity
of communication regarding patient care and plans of care; lack of appropriate examination,
care, and follow-up of patients which may have contributed to patients needing to be urgently
sent out for higher-level care, and concerns raised by nursing staff about follow-through when
abnormal findings (e.g. labs and clinical signs) or family concerns were bought to
Complainant’s attention. S1 noted that it was normal protocol to go forward with a Focused
Professional Practice Evaluation when the Professional Standards Board believes it is necessary
to maintain the safety of the patients.

Regarding claim (4), the Professional Standards Board recommended a one-year re-privileging
period to evaluate Complainant’s improvements. The Chief of Staff confirmed that the usual
practice was to extend privileges while management evaluated an employee to allow them to go
through due process without having the privileges expire. The Chief of Staff noted that doing
a shorter renewal period than the usual two-year period did not prejudice an employee because
it was simply a way of giving more time for the process to play out, and a year was relatively
long based on how long it actually takes to investigate a matter. The Chief of Staff added that
management was actually advised to do a six-month re-privileging period and that if they had
needed to take action against Complainant’s privileges, they would have done so whether it
was six months or a year.

Finally, as to claim (5), S1 stated that Complainant was reassigned to Occupational Health
Service because there was less follow-up required in outpatient than in inpatient. The Chief of
Staff added that peer reviews showed that Complainant’s practice did not meet the standard of
care, and several case reviews showed significant deficiencies. The Chief of Staff affirmed
that ultimately all of these performance issues led to Complainant’s transfer to Occupational
Health.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued that the Chief of Staff did not observe or supervise his clinical work and
that the information he received was second-hand. Further, Complainant alleged that most of
the information provided to the Chief of Staff was influenced by S1 or others who have been
influenced by her biased opinion of him. The AJ found Complainant’s arguments
unpersuasive. The AJ noted that the fact that senior officials did not observe Complainant’s
performance first-hand did not mean that they lacked the qualifications to take action when
performance shortcomings based on direct observations and patient complaints about their
medical care are raised. The AJ determined that Complainant failed to show that the Agency’s
reasons for its actions were pretextual. As a result, the AJ found that Complainant had not
been subjected to reprisal as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ's review of the record was incomplete and
selective and led to an erroneous outcome. Complainant argues that he has established a prima
facie case of reprisal. Further, Complainant contends that the record is replete with “bits and
pieces” of evidence showing a “convincing mosaic” of circumstantial evidence showing
retaliatory animus. Complainant alleges that his reassignment was humiliating, degrading, and
a de facto demotion. Finally, Complainant argues that the Agency’s evidence was self-serving,
vague, and subjective. Accordingly, Complainant requests that the Commission reverse the
final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis (in this case, his prior protected EEO
activity). Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his prior protected
EEO activity, he was subjected to a hostile work environment as evidenced by multiple
incidents. Construing the evidence in the light most favorable to Complainant, the
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Commission agrees with the AJ that Complainant has not shown he was subjected to a hostile
work environment. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
retaliatory animus. For example, S1 affirmed that Complainant received a poor performance
evaluation based on his unsatisfactory performance in the area of clinical competence. ROI, at
168. S1 explained that management had received complaints from families that he seemed to
be too rushed and failed to communicate on plans of care. Id. In addition, management
noticed that Complainant would not readjust or reevaluate patients appropriately, abnormal labs
would not be addressed, and patients would be transferred to other facilities unnecessarily if
the proper care had been administered. Id. at 168-70.

With respect to the negative Professional Standards Board assessment, the record indicates that
the Board assessed six areas of general competence and identified numerous instances where
Complainant did not meet or needed improvement. ROI, at 186-87. Peer reviews, service
chief observations, and other reviews revealed that, in many instances, Complainant’s patients
needed to be transferred urgently out of the facility. Id. at 187. Moreover, members of the
Board independently expressed concern regarding Complainant’s clinical competence and
professional behavior over the past 10 years. Id. at 187-88. As a result of the patients’
families’ complaints and clinical care concerns, the Board recommended the initiation of the
Focused Professional Practice Evaluation to review Complainant’s clinical privileges. Id. at
190, 247-48. In addition, the Board recommended that Complainant’s recertification cycle for
review of his clinical privileges be set at one year. Id. at 192-93. The Deputy Chief of Staff
noted that the Board recommended this period simply to ensure that Complainant’s clinical
care remained adequate or showed improvement and placed him in no greater risk of losing
clinical privileges. Id. at 193.

Finally, the Chief of Staff emphasized that management decided to reassign Complainant to the
Occupational Health Service after the Professional Standards Board raised concerns about
Complainant’s practice endangering patients. ROI, at 212. Management subsequently
received reports from two senior independent peer reviewers which revealed significant
problems. Id. at 213. Complainant had previously expressed concern with S1 as his
supervisor; therefore, management decided to reassign Complainant to the Occupational Health
Service to protect the safety of patients and to put him in a setting where his clinical skills
might be a better match for the tasks that he was assigned. Id. at 214-17.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for reprisal.
As a result, the Commission finds no basis to disturb the AJ's summary judgment decision
finding that Complainant was not subjected to reprisal or a hostile work environment as
alleged.

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CONCLUSION

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 Equal Employment Opportunity Commission
Administrative Judge’s issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.

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.
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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 11, 2016
Date