[Redacted], Michael S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021003544 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michael S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003544 Hearing No. 430-2020-00567X Agency No. 2004-0652-2020101580 DECISION On May 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 7, 2021 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 relevant time, Complainant worked as a Staff Pathologist at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia. On April 2, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Asian), national origin (Chinese), sex (male), and in reprisal for prior protected EEO activity when: 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. 2021003544 2 a. On December 15, 2019, the Chief, Pathology and Laboratory Service, and the Chief of Staff placed Complainant on a Focused Professional Practice Evaluation (FPPE);2 and b. On December 6, 2019, the Chief, Pathology and Laboratory Service, and the Chief of Staff informed Complainant that he was the subject of a fact-finding investigation relating to slides which were done incorrectly. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the Agency submitted a Motion for Summary Judgment. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment finding no discrimination in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an administrative judge to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. Summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. See Id. at 249. At the summary judgment stage, the judge must believe the non- moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. See Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. We find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 2 A Focused Professional Practice Evaluation (FPPE) is a form of physician monitoring for a set period of time, usually in 90-day increments. 2021003544 3 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Chief, Pathology and Laboratory Service was Complainant’s first level supervisor (“S1”) and the Chief of Staff was second level supervisor (“S2”). On May 10, 2018, S2 proposed the removal of Complainant from his position as a Staff Pathologist after a chart review of Complainant’s treatment record revealed that he had failed to identify malignant tissue on eleven separate occasions. On May 28, 2018, the Director, Richmond VAMC, sustained Complainant’s removal from his position with an effective date of June 4, 2018. Complainant appealed that decision to a Disciplinary Appeals Board (“DAB”), which issued a decision on January 14, 2019, sustaining seven out of eleven charges, including that Complainant had failed to identify malignancies on four separate occasions where malignancies were present. However, the DAB reversed the decision to remove Complainant immediately. The DAB noted that no Focused Professional Practice Evaluation (FPPE) had been initiated regarding Complainant’s performance and that an FPPE for cause “should have been initiated” to give Complainant an opportunity to improve prior to termination. As a result, Complainant was placed on a FPPE. 2021003544 4 On October 9, 2019, S1 informed Complainant that the Board had extended his FPPE for an additional six months to provide him an additional opportunity to improve his performance, including his ability to consistently meet the goal of completing pathology reports within a 3-day turn-around time. S1 stated that in February 2020, Complainant successfully completed his FPPE and was started on an Ongoing Professional Performance Evaluation (OPPE). Regarding claim b, Complainant alleged that on December 6, 2019, S1 and S2 informed him that he was the subject of a fact-finding investigation relating to slides, which were allegedly done incorrectly. S1 stated that Complainant failed to review an intraoperative consultation before rendering a diagnosis. He stated that Complainant should have properly performed the intraoperative consultation by examining the slides prepared by an assistant for his review. S1 stated that Complainant’s failure was reported by the Laboratory staff. Thereafter, S1 stated he notified S2 because of the potential serious clinical consequences and she immediately assembled a fact-finding committee to investigate the circumstances. Moreover, S1 stated that the committee determined that Complainant neglected to perform his duty. S2 (Caucasian) stated that on December 6, 2019, S1 was notified that Complainant called the Operating Room (OR) and claimed that he had evaluated the tissue from the OR without actually looking at the tissue. She further stated that there was no issue regarding the slides themselves, and that the issue was that Complainant reported that he evaluated the tissue without actually looking at them. After careful review of the evidence of record, we conclude that the record supports a determination that the Agency articulated legitimate, non-discriminatory reasons for the disputed actions, which Complainant has not proven, by a preponderance of the evidence, to be pretext designed to mask discrimination. There is simply no evidence that Complainant’s race, national origin, sex or retaliatory animus played any role in the matters at issue. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021003544 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003544 6 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 December 9, 2021 Date