U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher M.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021000170 Hearing No. 410-2018-00178X Agency No. HHS-CDC-0031-2017 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 June 11, 2020 decision of an Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint claiming 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.2 BACKGROUND During the period at issue, Complainant worked as a Behavioral Scientist, GS-12, at the Agency’s Office of Noncommunicable Diseases, Injury and Environment for Toxic Substances and Disease Registry in Atlanta, Georgia. 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 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision became the final Agency action. 2021000170 2 On December 22, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African American) and in reprisal for prior protected EEO activity3 when: 1. Beginning September 13, 2016 to present, Complainant has been assigned work of a GS-13 grade level while being paid as a GS-12, while similarly situated PhD employees are paid at the GS-13 grade level. 2. Complainant is the only African American PhD level scientist in his work group and the only employee at the GS-12 level, while all the other PhD level employees outside of his protected class, performing the same or similar work are graded at the GS-13 level or higher. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On April 2, 2020, the Agency filed a motion for summary judgment. After receiving responses from both Complainant and the Agency, the AJ issued a decision by summary judgment in favor of the Agency on June 11, 2020. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. 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. 3 Complainant testified that he filed a prior EEO complaint in May 2015. Although Complainant’s first level Supervisor (S1) indicated no recollection of a May 2015 complaint, S1 indicated that he became aware on September 15, 2015, that Complainant had initiated pre- complaint counseling for a complaint made on August 25, 2015. 2021000170 3 For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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 Boarwd 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). The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for its actions. S1 denied assigning Complainant work outside of his GS-12 grade level. S1 noted that Complainant is in a career ladder position that is capped at the GS-12 level. Complainant was hired at a GS-11, and S1 promoted him to a GS-12 one year after Complainant’s hire. Because his position is capped at the GS-12 level, Complainant can only be assigned GS-12 grade level work. S1 stated that if Complainant wanted to receive a higher pay/grade level, he would have to apply for such a position through the merit promotion process. Nevertheless, S1 indicated that on March 8, 2016, Complainant requested a desk audit to get an objective determination on whether his work assignments were at the GS-13 grade level instead of the GS 12 grade level.4 S1 explained that he supported Complainant’s request. 4 S1 acknowledged, as did Complainant, that the results of the desk audit could yield a determination that Complainant’s position necessitated a promotion, or the desk audit could indicate that Complainant’s job duties were below the GS-12 level which would result in Complainant receiving a demotion. 2021000170 4 However, S1 indicated that Complainant, not Agency management, cancelled his request for a desk audit. Specifically, S1 stated that he scheduled a March 15, 2016 meeting to discuss the desk audit process, but Complainant declined because he felt that the audit should be conducted by Human Resources (“HR”). Thereafter, S1 explained that Complainant attended a May 15, 2016 meeting where he was informed about the desk audit process by a HR representative who was present during the meeting. The HR representative explained that the desk audit process required that Complainant first complete a pre-audit listing of his duties. S1 confirmed that Complainant completed this task, but Complainant informed S1 that he lost his audit document and requested additional time to complete the document. As of October 14, 2016, S1 indicated that he followed up with Complainant and Complainant informed him that he was still working on the desk audit, and S1 never heard further updates from Complainant on the matter. Because Complainant did not complete the first required step, the desk audit was not conducted, and therefore, a determination was not made regarding whether Complainant was assigned work beyond his GS 12 grade level. S1 confirmed that Complainant is the only African American at the GS 12 level on his team with a PhD. However, he noted that a doctoral degree was not required for Complainant’s grade level. S1 further explained that the other two Behavioral Specialists on Complainant’s team were working as a GS-12, like Complainant, and the other was a GS 11.5 Consequently, S1 indicated that there were no GS-13 Behavioral Specialists. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race or reprisal for prior protected EEO activity.6 CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED. 5 Given these facts, we conclude there are no similarity situated Behavioral Specialist employees on Complainant’s team. 6 To the extent that Complainant alleges that claims at issue also support that he was subjected to a hostile work environment, we note that a harassment claim is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his race or in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021000170 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) 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 his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, 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 OFO 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 his or her 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(c). 2021000170 6 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 January 25, 2022 Date
