2025002165•EEOC Appeal 2025002165
Testo completo
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Romeo K.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2025002165 Hearing Nos. 450-2023-00222X 450-2025-00006X Agency Nos. 2003-549A4-2022-147508 2003-549A4-2024-157842 DECISION 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 February 25, 2025, final order concerning his equal employment opportunity (EEO) complaint of 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 order. 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.
2025002165 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Urologist at the Agency’s Medical Center in Dallas, Texas. Complainant resigned from this position in June 2023. Agency Case No. 2003-549A4-2022-147508 Complaint 1 On October 5, 2023, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (Asian), national origin (East India), and in reprisal for prior protected EEO activity when: 1. On May 18, 2022, the Supervisor issued Complainant a Summary Suspension of Privileges letter; 2. On May 18, 2022, the Supervisor changed Complainant’s assignment of duties from surgical to non-surgical (clinical duties); 3. On May 23, 2022, the Supervisor denied Complainant sick leave for May 23-29, 2022; 4. On or about June 15, 2022, Complainant received a Summary Suspension of Privileges letter indicating his Operating Room privileges remain suspended; 5. On July 11, 2022, the Supervisor threatened to report Complainant to the National Practitioner Data Bank (NPDB); 6. On July 11, 2022, the Supervisor issued Complainant a Summary Suspension of Privileges letter; 7. On July 29, 2022, the Supervisor denied Complainant annual leave for September 26-29, 2022; 8. On August 10, 2022, September 2, 2022, September 30, 2022, October 5, 2022, November 4, 2022, December 2, 2022, December 27, 2022, February 2, 2023, February 28, 2023, and June 1, 2023, Complainant received Summary Suspension of Privileges letters indicating his Operating Room privileges remain suspended.
2025002165 3 Complainant also alleged that the Agency subjected him to a hostile work environment and discriminated against him on the bases of age (over 40), race (Asian), national origin (East India), and in reprisal for prior protected EEO activity when: 9. on or about August 3, 2023, and August 31, 2023, reports were made to the NPBD and State Medical Licensing Boards indicating adverse actions were taken against Complainant’s Title IV clinical privileges. On December 5, 2022, the Agency issued its Notice of Partial Acceptance. Claims 1-3 were dismissed for untimely Counselor contact but accepted as part of the overall hostile work environment claim. Reprisal was dismissed as a basis as Complainant had identified non-EEO activity as the basis of his reprisal claim. After requesting a hearing, on April 3, 2024, the AJ granted partial summary judgment for claims 3, 5, and 7, finding that the record showed no genuine dispute of material fact and no evidence from which a reasonable factfinder could infer discrimination, reprisal, or harassment. Regarding claim 3, the AJ found that Complainant's sick leave for May 23–27, 2022, was approved and properly recorded, contradicting the allegation that it had been denied. The AJ also noted that May 28th and 29 th fell on a weekend and did not require leave approval. For claim 5, the AJ determined that the July 11, 2022, letter concerning possible reporting to the National Practitioner Data Bank and state licensing boards was informational rather than threatening and merely explained applicable reporting requirements. As to claim 7, the AJ accepted the Agency's explanation that Complainant's requested leave for September 26–29, 2022, was denied because of staffing shortages, noting that alternative leave dates were offered and approved. Because Complainant failed to present evidence showing these explanations were false or motivated by discriminatory or retaliatory animus, the AJ concluded that no hearing was necessary on those claims. Agency Case No. 2003-549A4-2024-157842 Complaint 2 On April 2, 2024, Complainant filed a second EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (unspecified), age (over 40), race (Asian), national origin (East India), and in reprisal for prior protected EEO activity when:
2025002165 4 10. On August 3, 2023, August 31, 2023, and February 20, 2024, management submitted three similar NPDB Title IV clinical privileges action reports against Complainant; and 11. On February 27, 2024, management failed to respond to Complainant's allegations of reprisal. At the conclusion of the investigation, Complainant requested a hearing on Complaint 2. The AJ ultimately consolidated the complaints. On December 18, 2024, the Agency filed a motion for summary judgment. On January 24, 2025, the AJ dismissed the hostile work environment claim as to allegations (claims 9 and 10) based on post-employment reports made by the Agency. The AJ noted that the post- employment reports cited occurred after Complainant’s resignation, and thus failed to state a hostile work environment claim. Therefore, the AJ dismissed the hostile work environment claim based on disability, race, national origin, and age regarding the claims related to the reports. Following a hearing, on February 21, 2025, the AJ issued her decision concluding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding the suspension of Complainant’s operating room privileges in May 2022, and the repeated extension of the suspension, the AJ found that management became concerned about patient safety after several of Complainant’s patients encountered surgical complications. Moreover, review panels, including the Focused Clinical Care Review, Executive Council of the Medical Staff, and Professional Standards Board, independently evaluated those concerns. The AJ found no credible evidence that these actions were motivated by discriminatory or retaliatory intent, nor that the Agency’s explanations were pretextual. The AJ also upheld the Agency’s reports to the NPDB after Complainant resigned, finding the reports were made pursuant to Agency procedures and not because of any protected classes or prior EEO activity. The AJ further determined that the evidence did not establish a hostile work environment or discrimination. The AJ ultimately concluded that there was no discrimination or reprisal.
2025002165 5 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS Summary Judgment – Claims 3, 5, 7 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see also EEO MD-110, at Chap. 7, § III.E. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Having thoroughly reviewed the record and construing any inferences raised by the undisputed facts in favor of Complainant, we find that a reasonable factfinder could not find in Complainant’s favor with regard to those matters subject to summary judgment. The record shows that the Agency articulated a legitimate, nondiscriminatory reasons for its actions. Like the AJ, we find no persuasive evidence of pretext Hearing Portion 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.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (internal citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B. (Aug. 5, 2015). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Id. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so
2025002165 6 contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. Id. EEO-MD-110, Chap. 9 § VI.C, further provides that on appeal to the Commission, the burden is squarely on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. See id. In this case, this means that Complainant has the burden of pointing out where and why the AJ’s findings are not supported by substantial evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ’s] factual determinations are supported by substantial evidence”). We ultimately find that substantial record evidence supports the AJ’s finding that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Furthermore, the Commission finds that Complainant failed to show that the alleged conduct was based on discriminatory animus. Moreover, to the extent that Complainant is alleging disparate treatment regarding his claims, Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination or retaliation. CONCLUSION Based on the foregoing, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) 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.
2025002165 7 Requests for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) 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 their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) 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.
2025002165 8 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 their 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: T. Gimbrere __________ Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 15, 2026 Date
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