0120150196
04-05-2017
Giselle L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150196
Agency No. 2003-0657-2013101075
DECISION
On October 9, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 18, 2014, final decision (FAD) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
ISSUES PRESENTED
The issues presented are: (1) whether the Commission should sanction the Agency for failing to develop an impartial and appropriate factual record; (2) whether the Agency denied Complainant a reasonable accommodation; and (3) whether the Agency subjected Complainant to disparate treatment on the bases of sex (female), disability (major depression; ADHD), or age (55) when it separated her from employment during her probationary period.2
BACKGROUND
On December 19, 2010, Complainant was appointed to the position of Physician (Psychiatrist) at the Agency's St. Louis Veterans Affairs Medical Center (VAMC), Mental Health Service (MHS), Psychiatry Inpatient Section, in Missouri. Complainant's first-level supervisor was the Acting Section Chief (S1 - male, 40). Complainant's second-level supervisor was the Service Chief (S2 - male, 63). Complainant's third-level supervisor was the Chief of Staff (S3 - male, 56). Complainant's fourth-level supervisor was the VAMC Director (S4 - female, age unknown).
The Focused Professional Practice Evaluation (FPPE) was a process where the Agency, for a limited period evaluated the competence of a probationary practitioner new to a facility. During the evaluation period, a proctor would review the work of the practitioner. At the end of the evaluation period, the proctor would recommend to successfully close the FPPE, extend the FPPE, or address unresolved performance issues. The service chief then would agree or disagree with the proctor's evaluation and recommend to continue, limit, or revoke the practitioner's clinical privileges. A professional standards board (PSB) then would agree or disagree with the service chief's evaluation and recommend to successfully close the FPPE, extend the FPPE, or address unresolved performance issues. Management could request a PSB to conduct a summary review of a probationary practitioner's services in a situation where separation from the Agency might be justified. Probationary practitioners had to successfully complete the FPPE in order to maintain their clinical privileges, and having clinical privileges was a requirement for the practice of medicine at the Agency.
Complainant was subject to a FPPE. During Complainant's FPPE, S1 and a Psychiatrist (P1 - female, 45) served as proctors. Complainant was evaluated on six competencies: patient care; medical/clinical knowledge; practice-based learning and improvement; interpersonal and communication skills; professionalism; and systems-based practice.
In a May 30, 2012, FPPE Final Evaluation Report for the December 2010 to May 2012 period, S1 gave Complainant a rating of "unacceptable" on two out of the six competencies. Specifically, S1 highlighted problems related to the absence of treatment plans in several cases and the co-signing of medical residents' notes without further documentation. S1 recommended to extend the FPPE. On June 22, 2012, S2 agreed with S1's evaluation and recommended continuing Complainant's clinical privileges, but with a focus on those problems.
In June 2012, Complainant made several requests to S2 for reasonable accommodation. First, Complainant asked for approval to install her own dictation software on her Agency computer. In response, S2 denied Complainant's request because the IT Service would not allow the installation of personally-owned software on an Agency computer. S2, however, offered Complainant the use of the Agency's dictation system and training on how to use that system. Second, Complainant asked for a tour of duty change to start work later because she was having difficulty getting to work on time. In response, S2 allowed Complainant to change her tour of duty from 8:00 a.m.-4:30 p.m. to 10:30 a.m.-7:00 p.m. Third, Complainant asked for two hours a day without any scheduled patients because she was experiencing migraine headaches related to stress from a heavy workload. In response, S2 allowed Complainant to serve as the Medical Officer of the Day (MOD) from 4:00 p.m.-7:00 p.m. in exchange for a 25 percent reduction in her inpatient workload.
In an October 26, 2012, Extended FPPE Final Evaluation Report for the June 2012 to October 2012 period, P1 gave Complainant a rating of "unacceptable" on five out of the six competencies. P1 recommended to address unresolved performance issues. The documentation accompanying Complainant's Extended FPPE Final Evaluation Report stated that there were multiple examples of medical residents' notes being signed without documentation of supervision and agreement with care provided. In addition, the documentation identified three patients where there were serious problems with Complainant's clinical care: patient 1 - incorrect medication reconciliation; patient 2 - inadequate assessment of the patient's decisional capacity regarding medical care; and patient 3 - lack of documentation of assessment of psychiatric condition prior to discharge. On October 26, 2012, S2 agreed with P1's evaluation and recommended revoking Complainant's clinical privileges.
On October 26, 2012, S2 requested that a PSB conduct a summary review of Complainant's performance. On October 30, 2012, a three-member PSB (M1 - female, 63; M2 - female, 62; M3 - female, 56) convened to review Complainant's FPPE. Contemporaneous documentation reflects that the PSB approved the FPPE findings, suspended Complainant's clinical privileges, placed her on administrative duty, and referred the matter to a Summary Review Board (SRB).
On October 31, 2012, S3 issued Complainant a notice that a SRB would be convened on November 8, 2012 to conduct a summary review of her performance and to make recommendations concerning her retention in or separation from the Agency. On November 8, 2012, a five-member SRB (S3; M4 - female, age unknown; M5 - female, age unknown; M6 - male, age unknown; M7 - male, age unknown) determined that Complainant should be separated from the Agency.
On November 15, 2012, S4 issued Complainant a notice of separation during her probationary period, effective November 30, 2012.
On December 20, 2012, Complainant contacted an EEO Counselor. On March 22, 2013, Complainant filed an EEO complaint alleging, in pertinent part, that the Agency discriminated against her on the bases of sex (female), disability (major depression; ADHD), and age (55) when:
1. In June 2012, it denied her request for approval to install her own dictation software on her Agency computer;
2. In June 2012, it denied her request for a tour of duty change;
3. In June 2012, it denied her request for a reduced workload; and
4. Effective November 30, 2012, it separated her from employment during her probationary period.
The Agency partially accepted Complainant's complaint for investigation. Specifically, the Agency accepted incidents 1-4 as part of a harassment claim and accepted incident 4 as a separate disparate treatment claim. The Agency, however, dismissed incidents 1-3 as discrete acts for untimely EEO Counselor contact, i.e., not contacting an EEO Counselor within 45 days of the alleged incidents.
On September 13, 2013, the Agency's 180-day deadline for completing an investigation of Complainant's complaint expired. On October 9, 2013, the Agency initiated its investigation. On October 11, 2013, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) when she did not receive the Agency's report of investigation (ROI) after 180 days. Simultaneously, Complainant requested that the AJ sanction the Agency for not completing its investigation within 180 days. On November 22, 2013, the Agency completed its investigation. The investigation did not contain affidavits from Complainant or S4. The EEO Investigator contacted Complainant, but she refused to provide an affidavit, noting that she had requested a hearing. The EEO Investigator attempted to contact S4, but she was no longer working at the St. Louis VAMC, had relocated to the Philippines, and did not respond. On March 13, 2014, before the AJ ruled on the request for sanctions, Complainant withdrew her request for a hearing.
Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant did not prove that the Agency discriminated against her as alleged.
First, the FAD found that Complainant did not establish her claim of harassment (incidents 1-4) because the record did not show the Agency's conduct was based on her protected classes. Regarding incident 1, the FAD found that, in response to Complainant's request for approval to install her own dictation software on her Agency computer, S2 offered her an alternative accommodation involving use of the Agency's dictation system. Regarding incident 2, the FAD found that, in response to Complainant's request for a tour of duty change to start work later, S2 allowed her to change her tour of duty from 8:00 a.m.- 4:30 p.m. to 10:30 a.m.-7:00 p.m. Regarding incident 3, the FAD found that, in response to Complainant's request for two hours a day without any scheduled patients, S2 allowed her to serve as the MOD from 4:00 p.m.- 7:00 p.m. in exchange for a 25 percent reduction in her inpatient workload. Regarding incident 4, the FAD found that Complainant was separated from employment because she did not successfully complete the FPPE.
Second, the FAD found that Complainant did not establish her claim of disparate treatment (incident 4). Specifically, the FAD found that the Agency articulated a legitimate, nondiscriminatory reason for separating Complainant; namely, her clinical privileges were revoked because she did not successfully complete the FPPE. Moreover, the FAD found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Although Complainant argued that the FPPE findings were inaccurate and that management made her a scapegoat, the FAD found that her arguments were unsupported by the evidence in the record.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission sanction the Agency, by issuing a default judgment in her favor or by ordering a supplemental investigation, for failing to develop an impartial and appropriate factual record. Specifically, Complainant argues that the Agency did not initiate the investigation of her complaint until after the 180-day deadline had passed. In addition, Complainant argues that the Agency improperly dismissed her denial of reasonable accommodation claims (incidents 1-3). Moreover, Complainant argues that the investigation was incomplete and deficient because it did not contain the following: (a) an affidavit from S4, who issued the notice of separation; (b) a list of employees who successfully completed their probationary period; and (c) a transcript of the PSB/SRB meetings. Further, Complainant argues that the Agency was unable to articulate a legitimate, nondiscriminatory reason for her separation, as evidenced by the portions of the affidavit testimony from P1, S1, and M1-M3 where they stated they could not remember certain details. Finally, Complainant argues that her disability may have been discussed at the PSB/SRB meetings, as evidenced by affidavit testimony from S1 and S2 that they were aware of her disability.
The Agency did not submit a brief or statement in opposition to Complainant's appeal.
STANDARD OF REVIEW
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 EEO MD-110, Ch. 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").
ANALYSIS AND FINDINGS
Request for Sanctions
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id. An agency shall complete its investigation within 180 days of the date of filing of the written complaint, unless the parties agree in writing to extend the period for not more than an additional 90 days. 29 C.F.R. � 1614.108(e). The Commission's AJs and the Office of Federal Operations have the authority to issue sanctions against an agency for its failure to develop an impartial and appropriate factual record in appropriate circumstances. EEO MD-110, Ch. 6, � XII.
Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070045 (Sept. 10, 2007), request for reconsideration denied, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
Upon review of the record, we find, based on the facts of this case, that sanctions are not warranted. Specifically, we find that the Agency has developed an impartial and appropriate factual record, i.e., one that allows a reasonable fact finder to draw conclusions as to whether Complainant was denied a reasonable accommodation or subjected to disparate treatment as alleged. Although the Agency did not complete its investigation within the regulatory 180-day period, we note that it completed its investigation approximately two months later. The Commission has previously found that an AJ did not abuse her discretion in denying a complainant's request for sanctions when the agency completed its investigation approximately three months after the 180-day deadline. See Buckner v. Dep't of the Treasury, EEOC Appeal No. 0120111860. Similarly, under the circumstances here, we find that the Agency's two-month delay does not warrant a sanction.3 Although the Agency improperly dismissed Complainant's denial of reasonable accommodation claims (incidents 1-3),4 we find that the record contains testimonial and documentary evidence that allows us to draw conclusions as to whether discrimination occurred. ROI, at Exhibit (Ex.) A2, B2-B5, C8. Although the investigation did not include certain documents related to Complainant's separation, we again find that the record contains testimonial and documentary evidence that allows us to draw conclusions as to whether discrimination occurred. ROI, at Ex. A2, B2-B8, C3, C6-C9, C11-C13. We note that Complainant could have further developed the record at a hearing, but chose to withdraw her hearing request. See generally EEO MD-110, Ch. 7, � I ("A hearing provides the parties with a fair and reasonable opportunity to explain and supplement the record . . .").
Denial of Reasonable Accommodation (Incidents 1-3)
We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. � 1630.9. The term "reasonable accommodation" means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position. 29 C.F.R. � 1630.2(o)(1). An agency may choose among reasonable accommodations as long as the chosen accommodation is effective. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002).
Upon review of the record, we find that the Agency did not deny Complainant a reasonable accommodation. Regarding incident 1, Complainant asked for approval to install her own dictation software on her Agency computer. The record reflects that, although S2 denied Complainant's request, he offered her the use of the Agency's dictation system and training on how to use that system. ROI, Ex. B2 at 7-8. We find that this constitutes an effective accommodation. Regarding incident 2, Complainant asked for a tour of duty change to start work later because she was having difficulty getting to work on time. The record reflects that S2 allowed Complainant to change her tour of duty from 8:00 a.m.-4:30 p.m. to 10:30 a.m.-7:00 p.m. ROI, Ex. B2, at 8-9; Ex. B3, at 5; Ex. B4, at 5; Ex. B5, at 6; Ex. C8, at 1. We find that this constitutes an effective accommodation. Regarding incident 3, Complainant asked for two hours a day without any scheduled patients because she was experiencing migraine headaches related to stress from a heavy workload. The record reflects that S2 allowed Complainant to serve as the MOD from 4:00 p.m.-7:00 p.m. in exchange for a 25 percent reduction in her inpatient workload. ROI, Ex. B2, at 8-9; Ex. B3, at 5, 7; Ex. B4, at 5-6; Ex. B5, at 6; Ex. C8, at 1. We find that this constitutes an effective accommodation.
Disparate Treatment (Incident 4)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). While the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment on the bases of sex, disability, or age when it separated her from employment during her probationary period.
First, assuming, arguendo, that Complainant established a prima facie case on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for her separation; namely, her performance problems during the FPPE involving the clinical care of three patients (patient 1 - incorrect medication reconciliation; patient 2 - inadequate assessment of a patient's decisional capacity regarding medical care; patient 3 - lack of documentation of assessment of psychiatric condition prior to discharge). Although Complainant argues that the Agency did not meet its articulation burden, we disagree. Specifically, the record reflects that P1, S1, and S2 provided affidavit testimony specifically about the three patient care situations. ROI, Ex. B2, at 4, 13-14; Ex. B3, at 4; Ex. B5, at 4. Moreover, the record reflects that S3 and M1-M3 provided affidavit testimony generally about Complainant's substandard performance, the poor quality of her patient care, and her inability to practice effectively at the facility. ROI, Ex. B4, at 3-4; Ex. B6, at 8; Ex. B7, at 3-5; Ex. B8, at 3-4.
Second, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Instead, the documentary evidence in the record tends to show that Complainant was subjected to a FPPE in accordance with Agency policy, the Agency determined during the FPPE that her performance was unacceptable with respect to the clinical care of three patients, and the Agency, after a PSB/SRB review of her FPPE performance, separated her from employment. ROI, Ex. C6-C9, C11-C12. Although S1 and S2 averred that they were aware of Complainant's disability, we find no evidence (in their affidavit testimony or elsewhere in the record) to substantiate Complainant's speculation that her disability may have been discussed at the PSB/SRB meetings. ROI, Ex. B2, at 3; Ex. B3, at 3.
CONCLUSION
The Commission declines to sanction the Agency for failing to develop an impartial and appropriate factual record. The Agency did not deny Complainant a reasonable accommodation. The Agency did not subject Complainant to disparate treatment on the bases of sex, disability, or age when it separated her from employment during her probationary period. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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.
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
___4/5/17_______________
Date
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 Complainant also alleged that the Agency discriminated against her when it did not provide her with adequate training, placed her on administrative duty, and labeled her as incompetent. The FAD found no discrimination regarding those issues. Because Complainant did not specifically challenge those issues on appeal, we exercise our discretion not to address them in our decision. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A.3 (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.").
3 Although we decline to issue a sanction in this case, we remind the Agency of its obligations under 29 C.F.R. � 1614.108(e).
4 We remind the Agency that, because it has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, � 2-IV.C.1.a (May 12, 2000).
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