0120170667
04-13-2017
Mason H.,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
Mason H.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170667
Agency No. 200P-0648-2016103657
DECISION
On December 9, 2016, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 7, 2016, dismissing his complaint (Complaint 2) of unlawful 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to Complaint 2, Complainant was a former practicing Physician at the Agency's Medical Center in Portland, Oregon. He was the Chief, Plastic Surgery Section.
On July 22, 2016, Complainant filed Complaint 2 alleging, in relevant part, that the Agency discriminated against him based on reprisal for prior equal employment opportunity (EEO) activity when no later than March 31, 2016, pursuant to an Agency Handbook, the Agency failed to convene a required biennial pay panel that should have implemented a new and retroactive salary for him using the then current pay chart (effective January 10, 2016).
Previously, on February 26, 2016, an Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision on complaint 200P-0648-20141-02633 (Complaint 1) finding that the Agency discriminated against Complainant and subjected him to a hostile work environment based on his disability (perceived use of an illegal drug when he did not use and association with his wife who was taking part in a supervised drug rehabilitation program and no longer used drugs), and reprisal for prior EEO activity, as applicable, regarding multiple incidents from March 11, 2014 through May 18, 2015.2
The above incidents ranged from indefinitely summarily suspending Complainant from reporting to work and placing him on involuntary administrative leave starting March 11, 2014, summarily suspending his clinical privileges in March 2014 at its Medical Center in Portland and its Health Care System Roseburg, Oregon,3 advising staff and his patients that he would be fired for patient endangerment; in May 2014, but effective January 12, 2014, denying him an increase in market/locality pay; in October 2014, giving him a performance rating of unacceptable for fiscal year 2014; starting in November 2014, his supervisor continuously accused him of patient endangerment, beginning in November 2014, denying his requests for reassignment and administrative leave pending reassignment, and in April 2015, giving him a bad reference for his privileging and credentials application to another hospital required to work there.
Complainant's base pay was determined by his grade and step. In addition, he received "market pay," which was based on a salary survey of his peers at Agency hospitals of the same size across the nation and region, Hay Group Data, Association of American Medical Colleges salary data, and hospitals within the city of Portland, Oregon. Hearing Exhibit on Complaint 1 (HE) CP-2. Further, Complainant's pay was required to be within a minimum and maximum range in Agency pay tables. The applicable pay table for Chief Physician Plastic Surgery Section (Tier 2), effective January 12, 2014, ranged from $125,000 to $305,000. HE, CP-4. On March 31, 2014, the Pay Panel met while Complainant was still suspended and decided not to raise his market pay, which was $170,000. HE CP-3. Thereafter, the Agency issued Complainant a notification effective January 12, 2014, reflecting no increase in market pay with a total salary of $298,658, $170,000 of which was locality/market pay. Report of Investigation (ROI) on Complaint 1, at 635, Exh. C7.
The Agency stipulated that it could have postponed the Pay Panel for Complainant instead of convening it while he was on suspension. Attachment to AJ Order dated November 6, 2015, on Complaint 1.
Effective January 11, 2015, and January 10, 2016, the applicable Tier 2 salary range was raised to $125,000 to $340,000, per Agency pay tables Complainant submitted. HE, CP-5 & Attachment 5 to the appeal brief submitted for the instant appeal.
In December 2015, Complainant argued to the AJ on Complaint 1 that the above Pay Panel wrongfully denied him a raise in market pay, and requested back pay retroactive to when the Pay Panel should have met at the maximum Tier 2 rate of $305,000. While he was still working at the time, Complainant argued that he should receive front pay since the Agency was unable to provide him a safe work environment, e.g., free of continuously working under the retaliatory threat of being fired or losing his privileges and medical license due to false claims of patient endangerment. He requested that his front pay be at the January 2015 applicable Tier 2 pay table maximum rate of $340,000, starting when the next pay panel was due in 2016. HE J2, at 1 - 2.
Following a hearing on remedies on Complaint 1, the AJ issued a decision dated February 18, 2016, awarding, in relevant part, Complainant back wages to reimburse him fully for whatever promotions and pay raises he would have received if the discrimination had not occurred, including the Pay Panel. The AJ found that Complainant should receive a retroactive pay increase to the maximum Tier 2 rate for Chief of Plastic Surgery - $305,000 - effective on the date the last Pay Panel should have been conducted.
Based on testimony, the AJ found that the Agency's poisoned employment relationship with Complainant that was so bad that a reasonable physician in his situation would seriously consider suicide (albeit Complainant was not currently doing so), the level of his justified paranoia combined with stress at work was unsustainable, and there was little likelihood for genuine improvement. Relying on court precedent that front pay may be appropriate where the employee would have reasonably quit because of the hostile work environment but did not do because of the need to support his family, the AJ awarded Complainant front pay, with full benefits including health insurance, until he reached age 65, when he planned on retiring. While much of the information in the record on Complainant's age was redacted, the record suggests he will turn age 65 roughly around 2023 or 2024.
In its March 29, 2016, final order on Complaint 1, the Agency wrote that it accepted the AJ's decision in its entirety and ordered that the Agency Department fully implement it, albeit it added some additional specificity and relief. For example, the Agency specified that Complainant was entitled to make whole relief pursuant to 29 C.F.R. � 1614.501(a), and it would pay back pay in accordance with 29 C.F.R. � 1614.501(c)(5). The Agency wrote that Complainant would receive a retroactive pay increase to the maximum Tier 2 level for the Chief of Plastic Surgery - $305,000 - effective on the day the last Pay Panel should have been conducted. While the Agency agreed that Complainant was eligible for front pay, it specified that it would not start unless he resigned and would run from then until he reached the age of 65. It further specified that front pay would be retroactively increased to the maximum Tier 2 level for Chief of Plastic Surgery - $305,000 - effective on the date the last pay panel should have been conducted and would not be adjusted for future Pay Panel increases. The Agency did not file an appeal, and Complainant did not appeal the AJ's decision or final order.
In Complaint 2 filed on July 22, 2016, Complainant wrote that he was now a former employee in front pay status due to winning his EEO case against the Agency. He alleged that the Agency failed to convene the required biennial pay panel for him, pursuant to an Agency Handbook, by March 31, 2016.
The Agency dismissed Complaint 2 for concerning the remedy ordered on Complaint 1, and hence stating the same claim as Complaint 1, a matter already decided by the Commission. The Agency referred the matter to its Office of Resolution Management Office of Policy and Compliance.
On appeal, Complainant writes that he filed a "notice of breach" with the Agency on Complaint 1, meaning a notice that it did not comply with its final action. 29 C.F.R. � 1614.504. He argues that Complaint 2 does not regard Complaint 1, instead it concerns a new issue - the Agency's failure to provide him with the next biennial pay panel by March 31, 2016, which would increase his salary effective January 10, 2016. He argues that Complaint 1 included the allegation that he was denied a pay increase by the Pay Panel which met on March 31, 2014, not the new claim that the Agency failed to convene a Pay Panel for him again by March 31, 2016. He argues that Complaint 2 regards back pay calculated as of January 10, 2016, not front pay.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires that the agency shall dismiss a complaint that states the same claim pending before or has been decided by the agency or Commission.
In its final order on Complaint 1, the Agency ruled that it was fully implementing the AJ's decision, that Complainant was entitled to make whole relief pursuant to 29 C.F.R. � 1614.501(a), that it would pay back pay in accordance with 29 C.F.R. � 1614.501(c)(5), that he would receive a retroactive pay increase to the table Tier 2 maximum for Chief Physician of Plastic Surgery - $305,000 - effective on the day the last Pay Panel should have been conducted, and front pay at the same rate if he resigned starting the date thereof until reaching age 65, with no adjustments for future Pay Panel increases. We are not ruling on the legalities of the Agency setting a ceiling of $305,000 annually on the calculation of back and or front pay when it did not appeal the AJ's decision nor whether this is less wages with benefits than what the AJ ordered. We also are not ruling on the precise meaning of the Agency's Final Order or whether the Agency complied with the AJ's decision or its own Final Order. We don't make these rulings because these issues are not before us. But we agree with the Agency's finding that Complaint 2 falls within the scope of the remedies ordered on Complaint 1, and hence is identical to Complaint 1. The remedy ordered for Complaint 1 in both the AJ's decision and the Agency's final order covered both back pay and front pay and how to calculate them, which includes the issue in Complaint 2.
Accordingly, the FAD on Complaint 2 is AFFIMED.
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
April 13, 2017
__________________
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 Prior to drafting this decision, we reviewed the record on Complaint 1, which is in an EEOC Hearings Unit electronic record.
3 On April 10, 2014, the Agency's Roseburg Healthcare System fully restored Complainant's privileges because it was notified by the Agency's Portland Medical Center that its suspension of Complainant's privileges was rescinded and his privileges were fully restored. At some point, Complainant returned to work.
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