0120091637
08-26-2009
Tie Qian, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tie Qian,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091637
Agency No. 200I05462007104107
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 29, 2009 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.
From July 1, 2001 to September 18, 2007, complainant worked as a physician under an excepted appointment at the agency's Spinal Cord Injury Service (SCIS), Miami VA Health Care System in Miami, Florida.
On October 26, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of national origin (Chinese) when:
1. on September 14, 2007, his medical privileges were revoked; and
2. effective September 18, 2007, he was terminated from his accepted appointment.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, complainant subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its January 29, 2009 final decision, the agency found no discrimination. The agency determined that complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of national origin discrimination.
Regarding claim 1, the Acting Medical Center Director (D1) stated that he was the deciding official to revoke complainant's medical privileges. Specifically, D1 stated that the process began with the issuance of an August 2007 letter suspending complainant's privileges. The record reflects that on August 16, 2007, complainant was suspended for up to 30 days based on findings of potential substandard quality of care concerning his clinical competence including but not limited to inappropriate copying and pasting of patient medical notes in the Computerized Patient Record System (CPRS), failure to appropriately document interdisciplinary team medical notes, failure to follow-up on a patient's abnormal laboratory values and findings of possible falsification of the medical record. The record further reflects that in the August 16, 2007 suspension letter, complainant was placed on notice that that information from the findings and recommendations would be forwarded to the Medical Executive Counsel (MEC) for final recommendations to D1 within 30 calendar days of the suspension, and that the final decision would be made within five working days upon receipt of the MEC recommendation.
D1 stated that the Chief of Staff (CS) appointed a special Board chaired by a named physician to conduct management review of concerns regarding complainant's clinical practices. D1 stated that the Board forwarded a recommendation of revocation of complainant's privileges to MEC which concurred in the recommendation. Specifically, D1 stated that the MEC "is one of the three major counsels at this medical center, we have Leadership Counsel, and an Operations Counsel, and Medical Executive Counsel. And that group is chaired by [CS] and has about a dozen members of the medical staff who are primarily chiefs of service, with one or two medical staff members at large, and [attended] by the Director of the medical center, as well."
D1 stated "my role was based on the recommendation of the management review team, the Professional Standard Board, and the Medical Executive Counsel, and the Chief of Staff to take an action on September 14 [2007] to revoke privileges. We followed that with a due process that was outlined in that letter of the [September 14, 2007]. But, obviously, the action that was taken on that date was based on the evidence of record that was provided by the team, management review team, the PSB, and the Medical Executive Counsel." D1 stated that complainant's privileges were revoked because "there were numerous instances of what was determined to be unacceptable clinical practice." Furthermore, D1 stated that he did not discriminate against complainant based on his national origin.
CS stated that in his role as Chief of Staff, he served as the chair of the Professional Standards Board and "at the time the Professional Standards Board made the recommendation to revoke privileges and that had followed several previous Professional Standard Boards and reviews which had gone on. In addition as the Chief of Staff I also chair the Medical Executive Committee. So the recommendation of the Professional Standard Board goes to the Medical Executive Committee for action and recommendation to the Director." CS stated that while he is familiar with the agency's bylaws and rules and regulations concerning to fair hearing and appeals process for medical staff privilege reduction and revocation, it was applied in complainant's case. Specifically, CS stated "we made every attempt to apply it. There were as unfortunately happens here some differences or concerns about the interpretation at times, so we had numerous meetings to make sure that we went above and beyond and made sure to give the fairest hearing to [complainant]." CS stated that complainant was allowed to review the evidence that were not restricted by regulation concerning the proposed revocation of his privileges. CS further stated "I know that there were issues with getting the information to [complainant] that was being handled so pieces were going to him piecemeal. I wanted to make sure that we gave him the full amount of time necessary to review it and that he had the full documents, so that we actually delayed actions to make sure he had the time to review it."
Further, CS stated that the administrative panel did not ask complainant to appear and respond to the allegations against him before the revocation of his privileges was imposed because the previous board with [named physician (P1)] had offered him the opportunity." Specifically, CS stated "my understanding from [P1] and that board was that they felt strongly that the vast preponderance of information as well as his written response was sufficient."
Complainant's supervisor (S1) stated that his role in regard to the revocation of complainant's medical privileges was "bringing up behaviors of [complainant] that were not in order with what was expected in his role of a physician in regard to responsibility to his patients, in regard to his documentation and in regards to falsification of data. Those are things that we don't do in a medical practice and things that could put the hospital in jeopardy. So my role was to bring that up to the credentialing committee. And I felt that they were patient safety issues at that point." S1 further stated that complainant had been warned "before that he had to correct his behavior, and he did not correct his behavior so once I acted on it and reported the other events that had transpired a special investigative board was convened." S1 stated that the CS sent complainant a letter notifying him that there was a special investigation being conducted and what it could lead it and "it was all listed in grades of severity down to revocation of privileges, et cetera. Shortly before the panel had reached a decision, [complainant] despite knowing that he was under all this investigation did something that was unacceptable and I had to report that up to the Chief of Staff and that went on to that board."
The Chief, Human Resources Management Service (C1) stated that he had a limited role concerning the revocation of complainant's medical privileges. Specifically, C1 stated that he was part of a peer group and his role was "just to review the evidence provided and provide guidance by regulations." C1 stated that once management had concerns regarding complainant's clinical competence, "we suspended his privileges and then that was identified by the service and then there was a three-person board to review, peer review process, to see if the initial suspension was appropriate. At that point it was found that it was appropriate." C1 stated that prior to the revocation of his medical privileges, complainant had four review boards in relationship to his clinical competence. C1 stated that complainant's privileges were revoked because "it was identified that he was using a cut and paste technique which basically takes parts of the medical record, either the patient's record or someone else's record, and he was using it in the medical record. So it basically was falsification of medical records." C1 stated that complainant's national origin had nothing to do with the revocation of his privileges.
Regarding claim 2, C1 stated that on September 14, 2007, he issued complainant the termination letter. In the September 14, 2007 letter, complainant was placed on notice that management made a determination to terminate his excepted appointment effective September 28, 2007 and "this termination also constitutes a revocation of your clinical privileges as you no longer hold an appointment with VA. This determination is based on the results of a Management Review Team that concluded that you had demonstrated a pattern of unacceptable clinical practice and professional conduct that was not remedied despite repeated episodes of formal counseling."
Further, C1 stated that he made the decision to issue the termination letter "shortly after the board met or the panel. The evidence was after they reviewed the evidence not only from the service but the independent panel reviewed the evidence and found that there was some impropriety and that's when he was terminated." C1 stated that complainant "was on a temporary appointment therefore he could be terminated at any time, even if he was late for work or anything other than clinical competence. So therefore that's what I tried to keep separate. Clinical competence, that's a medical documentation, and therefore the fact that he did not follow proper procedures and that he was using improper techniques in relationship to cutting and pasting which would constitute falsification of a record would be enough to terminate his employment."
CS stated "when the decision came up from both [P1's] board, from the Professional Standards Board and from the Medical Executive Committee that [complainant's] privileges should be revoked, I concurred with the decision to terminate his appointment." CS stated that it was his standpoint that "this is a very unfortunate case. I've known [complainant] for years while he was here. He's a very talented individual but unfortunately this was a progression over the last year and a half or so. It didn't come out of the blue. There had been problems identified with his medical record documentation and specifically with the inappropriate copying and pasting of other physical exams and other histories that had not been done at the time that it was documented in the record." Furthermore, CS stated that he did not discriminate against complainant based on his national origin.
S1 stated that he felt that the process that was following with respect to complainant's termination was consistent with the medical staff bylaws because "everything was looked at fairly. He had been given previous warnings and disciplinary actions. He had a review of professionals look at things in the record of his management of patients that I was not involved in so they even had made their own views with them."
A claim of disparate treatment is examined under the three-party 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 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, the 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).
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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that after a careful review of the record, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2009
__________________
Date
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0120091637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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