[Redacted], William W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 6, 2022Appeal No. 2022002899 (E.E.O.C. Oct. 6, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 William W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002899 Agency No. 200P-0644-2021103968 DECISION On May 3, 2022, 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 6, 2022 final decision concerning her 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. BACKGROUND In March 2020, after Complainant had successfully completed her surgical residency, the Agency hired her to work as a Urologic Surgeon, Grade GS-15, for the Urology Section, Surgery Service at the Agency’s Health Care System facility in Phoenix Arizona. Complainant applied for robotic surgery privileges, among others, which were granted by the facility’s Chair, Medical Executive Council (female) and the Interim Medical Center Director (female). This initial clinical privileges document stated that her privileges would remain in effect until February 2, 2022. 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 2022002899 In November 2020, Complainant performed a robotic prostatectomy and bilateral pelvic lymph node dissection with a senior urologist (female) as her proctor. There were no complications with the surgery and the patient had a positive outcome as a result of the robotic procedure Complainant had performed. From December 2020 to February 2021, Complainant took leave because of her pregnancy. Thereafter, between March 2021 and December 2021 and Complainant took twelve weeks of paid parental leave and FMLA leave intermittently to attend to her infant’s health. On May 27, 2021, during a meeting of the Urologic Surgeon, the Chief of Urology announced a new and unwritten policy whereby robotic surgery privileges were now restricted. Two new physicians, whom the Agency had hired as robotics surgeons (both male, both Caucasian) had robotic privileges but could only perform robotics surgery with a senior robotics surgeon. The senior urologist (female), who had previously been Complainant’s robotic surgery proctor, also had robotic privileges but could only perform robotics surgery with a senior robotics surgeon. The Agency did not hire a permanent senior robotics surgeon until July 2021. The Chief of Urology stated that Complainant’s request for continued robotics surgery privileges was denied. On May 28, 2021, Complainant initiated informal EEO counseling by contacting the Agency’s Office of Resolution Management. The parties failed to resolve the matters that Complainant believed to be discriminatory. On August 13, 2021, Complainant filed the instant formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female). In its notice dated August 30, 2021, the Agency dismissed two of Complainant’s claims for failure to state a claim. 2 The Agency accepted the following EEO claim for investigation: On May 27, 2021, the Chief of Urology (male, Caucasian), and the Chief of Surgery (male, Caucasian), denied Complainant the opportunity to perform robotics surgeries. During the EEO investigation of her complaint, in a narrative statement accompanying her affidavit, that was dated October 19, 2021, Complainant described additional events that she believed to be discriminatory. On an unspecified date, when Complainant disclosed her pregnancy to the Chief of Surgery, she said he responded by offering to perform a vasectomy on her husband. 2 Complainant does not address the dismissal of these two claims on appeal, and we therefore will not address them further herein. 3 2022002899 Complainant also described a Urology Section meeting held in October 2020, where the Chief of Urology addressed newly hired male physicians as “doctor” but addressed Complainant and other female physicians less formally, using their first names. Complainant characterized these interactions with her supervision as microaggressions.3 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC 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) on April 6, 2022 , finding no discrimination. The instant appeal followed. 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”). We consider Complainant's claims in the context of disparate treatment discrimination. We applied the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination -- that a prohibited consideration of Complainant’s gender, pregnancy, or EEO-protected activity unlawfully factored into the Agency’s employment decisions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). If the Agency has met the second burden, then Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 3 We will consider these two alleged incidents not as separate claims of discrimination, but rather as evidence proffered Complainant in support of her claim that the denial of her privileges to conduct robotic surgeries was motivated by sex discrimination on the part of management. 4 2022002899 We dispense of the prima facie case, when the Agency has articulated legitimate and nondiscriminatory explanations for its actions; then our analysis proceeds directly to whether Complainant demonstrated with preponderant evidence, that any of the Agency's actions were discriminatorily motivated. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). The Agency has acknowledged that Complainant’s robotic surgery privileges were effectively revoked, at least temporarily. However, responsible management officials articulated legitimate and nondiscriminatory business reasons for the adverse action at issue. The Chief of Urology explained that, only two of five urologists were permitted to maintain their robotic surgery privileges. One is male and the other is female. In addition to Complainant, two other urologic surgeons (both male) had their robotic urological surgeries privileges similarly withheld. The Chief of Urology further explained that Complainant was recruited and hired because of her expertise in Percutaneous Kidney Surgery, a specialization not performed within the Robotic Surgery Program. He indicated that the guidelines for maintaining robotic competency for each urologist is, at minimum, performing 25 robotic surgeries in a 12-month period. However, the Phoenix VAMC Urology Department only performed 26 robotic surgeries in the entire prior year and, therefore, did have the number of robotic surgeries required to have more than two robotic surgeons. Chief of Urology also said that he may reconsider authorizing robotic privileges for Complainant and other urologists if the number of scheduled robotic surgeries substantially increases in the future. On appeal and acting pro se, Complainant argues that the Agency’s low volume explanation for lack of robotic surgical privileges is pretextual. According to Complainant, the Agency hired two male surgeons to specialize in robotics despite the decrease in volume of need for robotic surgeries in the Phoenix VA Health Care System facilities. Complainant maintains that she is abundantly qualified to perform robotic surgeries and has already done so with success. Complainant stated that she is more suited to have robotic surgery privileges than her colleagues who have them in terms of her robotics training, robotic experience, and had robotic surgical privileges at the hospital where she completed her residency. Complainant argues that she has more experience in robotic surgery than the physicians who have been granted robotic surgery privileges within the Surgery Service at the Agency’s hospital facility. Authorizing which surgeons can schedule certain types of surgery is a regular duty of hospital management, which, EEOC will not second guess absent proof of discriminatory intent. Agency employers have broad discretion to execute personnel actions and exercise business judgment. Stephanie K. v. U.S. Postal Serv., EEOC Appeal No. 0120182528 (Nov. 5, 2019) citing Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). According to Complainant, her supervisors’ decisions to reduce urologic diagnostic procedures of robotic surgeries caused multiple operating room closures, onerous surgical approval processes, and unnecessary face-to- face visits during the COVID-19 pandemic. 5 2022002899 However, these arguments amount to challenges to management’s business judgment and are not sufficient without more to demonstrate discriminatory motive. The pretext inquiry is not concerned with bad or mistaken judgment. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). Rather, Complainant must show that the Agency’s proffered reasons masked its actual unlawful animus towards her sex. Complainant's assertions to this effect lack sufficient support in the evidence of record. While Complainant clearly believes she should have been one of the two surgeons maintained in the robotics program, she has failed to prove her sex played a role in the decision. In reaching this conclusion, we first note that the Lead Robotic Surgeon is female. Second, the record establishes that, in addition to Complainant being denied robotic privileges, so were at least two other male urology surgeons. There simply is insufficient evidence that sex was a factor in this decision. CONCLUSION Based on a careful review of the record and contentions on appeal, we AFFIRM the Agency's final decision finding of no discrimination regarding denial of robotic surgery privileges. 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. 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 6 2022002899 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. 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. 7 2022002899 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 6, 2022 Date Copy with citationCopy as parenthetical citation