Merrill O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 9, 2019

0120181764 (E.E.O.C. Oct. 9, 2019)

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

Merrill O.,1
Complainant,

v.

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

Appeal No. 0120181764

Hearing No. 560-2016-00300X

Agency No. 2003067720151034215

DECISION

On May 4, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 5, 2018, 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., 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 decision (FAD).

ISSUE PRESENTED

Whether the Agency discriminated against Complainant and subjected him to discrimination and
harassment based on race (Indian), sex (male), national origin (India), age (over 40), and reprisal
alleging harassment and discrimination.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff
Gastroenterologist at the Agency’s Eastern Kansas Health Care System facility in Topeka, Kansas.
On July 24, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Indian), national origin (India), sex (male), age (40), and reprisal
when:

1. On July 23, 2014 management failed to act when Complainant reported that someone
entered information into one of his patient's medical records;
2. Between October and November 2014, Complainant received three traffic citations;
3. On September 24, 2014, Complainant was issued a Written Letter of Counseling (LOC);
4. On November 21, 2014, Complainant was issued a LOC;
5. In February 2015, Complainant was assigned a more strenuous work schedule without the
aid of a physician assistant (PA);
6. On April16, 2015, management failed to act when Complainant reported that the clinically
indicated dates were missing, and that there were deliberate changes in bowel preparation
schedules;
7. On May 5, 2015. Complainant continued to be assigned a heavier workload than other
operators in the operating room (OR);
8. On May 5, 2015, Complainant was issued a LOC via email;
9. On May 8, 2015, Complainant was issued a LOC and instructions;
10. On July 1, 2015, Complainant became aware that his retention pay bonus was discontinued;
11. On October 1, 2015, Complainant was placed on Authorized Absence;
12. On November 10, 2015, Complainant was issued a proposed removal; and
13. Effective December 28, 2015, Complainant was terminated from his position as a Staff
Gastroenterologist.

Complainant was supervised by S1, the Section Chief, Department of Medicine, (Caucasian,
female, United States, over 40 and no prior EEO activity) and S2, the Service Line Manager for
the Department of Ambulatory and Emergency Medicine (Caucasian, male, United States, over 40
and prior EEO activity).

Complainant contends that on July 23, 2014, someone entered information into one of his patient’s
medical record. He claimed that he reported the incident to the former chief of Staff and the
Medical Center Director, but no action was ever taken. The former chief of Staff and the Medical
Center Director claimed no knowledge of the event.

In October 2014, Complainant received a written traffic citation for “having an unopened bottle of
alcohol in his vehicle.” On November 14, 2014, Complainant was issued a citation for speeding.
On November 25, 2014, Complainant was issued a citation for failure to stop at a stop sign.
Complainant believed that the three citations were part of a conspiracy to create fear in him, and
to defame him.

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The Agency Police Officer testified that Complainant was given a courtesy violation notice for
speeding, and a ticket for failure to stop at a stop sign. He further stated that with regard to the
alcohol, Complainant had an unopened bottle of whiskey in his car while parked in the facility
parking lot. He stated that Complainant was required to dispose of the alcohol and no further action
was taken concerning these incidents.

On September 24, 2014, Complainant received a LOC. He testified that it was because he
expressed frustration towards a provider who did not give him appropriate clinical information
concerning a consult. S1 testified that Complainant received the LOC for sending a colleague an
inappropriate email. She stated that Complainant refused to sign the LOC but told her that he
would apologize to the colleague.

On November 21, 2014, Complainant received another LOC. He testified that the LOC was issued
because he met with union officials, and that he was coerced into signing it. S1 testified that
Complainant received this LOC for breaking protocol because he left a patient unattended while
sedated, and for writing an inappropriate comment in a patient’s chart. S1 denied that Complainant
was coerced into signing the LOC.

In February 2015, Complainant claims that he was assigned a more strenuous work schedule
without the aid of a PA. He further testified that on May 5, 2015, he was assigned to perform more
case work than his colleagues in the OR. He contended that the five co-workers were not treated
in the same manner.

S1 testified that Complainant was not assigned more strenuous work than his colleagues. She
further stated that a PA is not to assist Complainant with his primary assignments. She stated that
Complainant may have felt that he was overwhelmed because he was the only full time
Gastroenterologist assigned to the OR. S1, after a discussion with Complainant, agreed to assign
a nurse to assist him with non-primary duties. S1 denied that co-workers were treated more
favorably and that they are not assigned to the same duties. She stated that Complainant’s co-
workers were Surgeons, whereas Complainant was a Gastroenterologist.

On April 16, 2015, Complainant’s clinically indicated dates were missing, and several mishaps
occurred concerning bowel preparations. He stated that management had not acted after he
reported the incident. S1 denied knowledge of the matter. She stated that she addressed scheduling
issues with Complainant. S1 stated that there was an issue with double booking because a PA left
the facility, and his clinic schedule was left open. S1 resolved the matter by closing the PA Clinic.

On May 5, 2015, S2 issued Complainant a LOC regarding office protocol. Complainant stated
that the LOC was issued because he asked his colleagues for assistance on how to improve the
efficiency of the clinic. S2 stated that he did not send Complainant a LOC. He stated that he sent
Complainant an email asking him to refrain from sending emails to staff with negative or sarcastic
remarks. S2 stated that Complainant had sent an inappropriate email to a clerk in the surgical
department.

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On May 8, 2015, Complainant contends that S1 issued him a LOC containing guidelines
concerning email protocol. Complainant stated that the LOC was issued for allegedly making
inappropriate comments in a patient’s chart. S1 stated that she did not email Complainant a LOC.
What she sent to Complainant was an email on office protocol. It was sent because S1 found that
Complainant made “inappropriate comments in a patient’s chart and continued to send
inappropriate emails to staff. S1 directed Complainant to remove the inappropriate comments
from the patient’s chart and to refrain from sending inappropriate emails to staff.

On July 1, 2015, Complainant stated that he learned that his retention pay bonus was discontinued.
He had been previously notified that that bonuses were not guaranteed. Complainant stated that
the action reduced his salary by 9.1%. The Human Resources Specialist testified that he was the
point of contact for retention bonuses. He stated that retention bonuses were reviewed annually,
and adjustments are made based on the labor market.

The Human Resources Specialist stated that in 2015, the local labor market data for the Veterans
Integrated Service Network, without a bonus, was at $281,017.00. Complainant annual salary
with the bonus was $305,951.00. The Agency decided to eliminate the bonus for 2015 for financial
reasons. Complainant was not the only employee who was affected by this change.

Complainant alleged that on October 1, 2015, he was placed on Authorized Absence (AA) without
justification. S1 stated that on September 30, 2015, Complainant reported to work several hours
late and was acting in an erratic manner. S1 stated that Complainant’s speech was slurred, and he
failed to notify the appropriate staff that he was going to be late. S1 was concerned and asked
Complainant to refrain from seeing patients. S1 went to HR for assistance, but upon her return
Complainant had left the facility. He had not received approval to leave, nor did he provide notice.
When he returned to work, he was asked to submit to a drug screen. He refused and was placed
on AA pending an inquiry.

On November 10, 2015, Complainant was issued a proposed removal. It was finalized on
December 28, 2015. Complainant contended that he was charged with failure to follow proper
leave procedures, failure to follow supervisory instructions, and AWOL. Complainant contended
that the charges were unfounded, and that the action was issued because “S2 did not like him.” S2
stated that he issued Complainant the proposed removal due to Complainant’s repeated
misconduct, and failure to follow leave protocol and supervisory instructions. S2 consulted with
HR and his action was sustained.

On December 28, 2015, Complainant was terminated. S2 contends that the charges were
warranted and that he followed the table of penalties in processing the action. S2 stated that
Complainant was provided with an opportunity to rebut the allegations, but he was unsuccessful.
The Agency contends that between August and October 2015, Complainant was charged with
several specifications of failure to follow supervisory instructions, inappropriate conduct, AWOL,
and failure to follow leave procedures. Complainant provided witness testimony concerning his
allegations of harassment and discriminations. Two witnesses testified that they believed that
Complainant was subjected to harassment and discrimination.
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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). Complainant initially requested a hearing,
but later withdrew the request. The AJ, in accordance with his withdrawal, remanded the
complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argued, among other things, that: (1) the Agency erred in failing to
investigate his contention that the Agency retaliated against him with regard to its attempt to
persuade him to resign; (2) the Agency erred in failing to fully investigate and develop the factual
record with respect to witnesses who testified that he was subjected to discrimination on the basis
of race and national origin regarding his removal and his workload; (3) the Agency erred in
concluding that he failed to establish that his race, sex, national origin, age, and/or prior EEO
activity were a motivating factor in the Agency’s decision to remove him from his employment;
and (4) the Agency erred in concluding that he failed to establish that he was subjected to a hostile
work environment on the basis of his race, sex, national origin, age, and/or EEO activity.

The Agency, among other things, requests that we affirm its FAD.

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. (Aug. 5, 2015) (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”).

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See 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. See Texas Department of
Community Affairs v. Burdine. 450 U.S. 248. 253 (1981). Once the agency has met its burden,
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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. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).

Assuming, arguendo, Complainant established a prima facie case of discrimination-based race,
national origin, sex, age, and reprisal, we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions as was set forth above. We also find that Complainant did
not provide persuasive evidence of pretext with regard to these matters. To meet his ultimate
burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate
such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the
[Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132
(Sept. 14, 2017). As Complainant did not request a hearing, we do not have the benefit of an
Administrative Judge’s credibility determinations after a hearing; therefore, we can only evaluate
the facts based on the weight of the evidence presented to us.

Harassment

Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

With respect to the issues raised by Complainant on appeal, we find that with regard to his
contention that the Agency tried to persuade him to resign we find no evidence that he was
subjected to an adverse action, because the record indicates that he was terminated by the Agency
and did not resign. Regarding Complainant’s contention that the Agency erred in failing to fully
investigate and develop the factual record with respect to witnesses who testified that he was
subjected to discrimination on the basis of race and national origin regarding his removal and his
workload, we note that neither witness provided facts or documentary evidence to substantiate
their claims, other than subjective opinions concerning Complainant’s interactions with
management and staff. Moreover, Complainant, had he not withdrawn his hearing request, would
have had the opportunity to present the testimony of these witnesses in a more developed fashion.
Finally, as indicated above we do not find that the Agency erred in fining no discrimination or
harassment in this case.

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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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

October 9, 2019
Date