01A45229_r
12-13-2004
Veronica E. Adoun, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Veronica E. Adoun v. Department of Veterans Affairs
01A45229
December 13, 2004
.
Veronica E. Adoun,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45229
Agency No. 200L-0667-2001300751
Hearing No. 270-2003-09193X
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleged that she was
subjected to discrimination on the bases of race (Black) and national
origin (Nigerian) when:
1. In June 2001, the Attending Physician gave complainant an
unsatisfactory performance evaluation.
On August 24, 2001, the Attending Physician gave complainant an
unsatisfactory performance evaluation.
3. On September 20, 2001, the Attending Physician gave complainant a
very poor performance evaluation rating.<1>
On September 25, 2001, the Internal Medicine Program Director, LSU
Department of Medicine placed complainant on administrative leave with
pay because complainant did not fulfill her responsibilities as expected.
5. On October 16, 2001, complainant was terminated from the LSU Medical
Residency Program.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on June 7, 2004, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented a
legitimate, nondiscriminatory reason for its actions, which complainant
failed to rebut. With regard to complainant's harassment claim, the AJ
also found that there was insufficient evidence to support a claim of
harassment on any of the bases alleged in this matter.
On June 30, 2004, the agency issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. Thereafter, complainant
filed the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. Regarding the June 2001 performance evaluation,
the Attending Physician (AP1) found several problems with complainant's
performance: complainant was unable to prioritize; she left a patient
who was being brought to the Intensive Care Unit; she went to the
library instead of making morning rounds; she was unable to integrate
her medical knowledge with the patient's clinical scenario - once
wanting to discharge a heart attack patient who had high blood pressure;
she could not find the source of a fever in a four-week postoperative
patient with an infected leg site; and she lacked initiative. AP1 also
charged complainant with not rounding with the interns and the medical
students on her team.
With respect to the August 2001 performance evaluation received on
September 20, 2001, the Attending Physician (AP2) stated that he
rated complainant �unsatisfactory� in three out of five categories.
AP2 testified that he gave complainant an unsatisfactory rating in
clinical judgment because he had to order complainant to get an X-ray
of a patient complaining of shortness of breath. AP2 mentioned that
complainant's overall rating was �Unsatisfactory.� AP2 averred in his
affidavit that he gave complainant a poor rating because he discovered
from the medical student who was assigned to complainant that she was not
making rounds with her team. AP2 said that he asked one of the interns
and was told that they rounded five minutes on maybe two occasions.
AP2 stated that he had told complainant six or seven time that she should
round with the interns, and had told her at the beginning of the rotation
that all she had to do was make rounds. The purpose of �rounds� was
to prepare the patients for the attending physician and to enable the
resident to discuss a patient's condition with the attending physician.
AP2 contended that he found it shocking that complainant was not rounding.
AP2 mentioned that, when he confronted complainant, she became angry
and told him, �Be careful what you write on your evaluation.�
As to complainant being placed on administrative leave with pay and
subsequently being terminated, the responsible management officials
justified the actions as appropriate because complainant was failing to
make rounds during her residency program.
Complainant has failed to rebut the agency's legitimate, nondiscriminatory
reasons for its actions. Complainant has failed to show, by a
preponderance of the evidence, that she was discriminated against on
the bases of race or national origin.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 13, 2004
__________________
Date
1Both issues 2 and 3 involve the same August
2001 evaluation prepared by the same Attending Physician.