[Redacted], Gilda M., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Aug 24, 2022

Appeal No. 2021000555 (E.E.O.C. Aug. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilda M.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021000555 Hearing No. 570-2017-00102X Agency No. HHS-FDA-OC-071-16 DECISION On October 28, 2020, 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 September 27, 2020 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Programs Coordinator, GS-14-8, for the Agency’s Office of Health and Constituent Affairs, Office of External Affairs, Office of the Commissioner, in Silver Spring, Maryland. On June 27, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African American), color (Black), sex (female), age (54), and reprisal for prior protected EEO activity when: 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. 2021000555 2 1. Complainant has been subject to discrimination and harassment since 2011; 2. On February 29, 2016, Complainant received a 4.3 score, which was lower than the score she anticipated for her Performance Management Appraisal Program (PMAP) rating; 3. On April 12, 2016, the Agency placed Complainant in a lower-than deserved performance pool causing a reduction in the duration of her time- off award for performance year 2015; 4. On July 11, 2016, Complainant’s supervisor [(“Supervisor-1”)] issued her a Memorandum of Warning; 5. On December 8, 2016, Supervisor-1 issued Complainant a Memorandum of Counseling; 6. On February 2, 2017, Complainant received a lower PMAP rating; 7. On February 16, 2017, Complainant received a Letter of Reprimand; 8. On April 12, 2017, Complainant was placed in a lower-than deserved performance pool causing a reduction in the duration of her time-off award for the 2017 performance year. 9. On June 2, 2017, Complainant’s second level supervisor [(“Supervisor- 2”)]) denied Complainant’s previously approved administrative leave to attend the Board of Optometry and Board of Health Professions meeting; 10. On June 2, 2017, [Supervisor-2] accused Complainant of failing to meet an assignment deadline; 11. On June 2, 2017, [Supervisor-2] removed Complainant’s telework privileges; 12. On June 2, 2017, [Supervisor-2] denied Complainants sick and personal leave for June 6 through 8, 2017; 13. On June 2, 2017, [Supervisor-2] demanded that Complainant resolve an inquiry from an unfamiliar stakeholder; 14. On June 6, 2017, [Supervisor-2] denied Complainant’s previously approved attendance as speaker and FDA delegate to the American Optometric Association Conference; 2021000555 3 15. On June 6, 2017, [Supervisor-2] denied Complainant’s previously approved attendance as a guest panelist at the National Hispanic Medical Association Conference; 16. On June 12, 2017, [Supervisor-2] denied Complainant’s previously approved attendance as quest panelist to the external Centers for Medicare/Medicaid meeting; 17. Since September 1, 2017, [Supervisor-2] has changed Complainant’s job responsibilities, by relegating the Complainant to a role that has less prestige, less visibility, and less professional development opportunities; 18. Since September 1, 2017, [Supervisor-2] has denied Complainant’s request to meet and discuss the changes in her job responsibilities; 19. Since September 1, 2017, [Supervisor-2] has denied Complainant’s request to take administrative leave to attend a professional development function; 20. Since September 1, 2017, [Supervisor-2] denied Complainant’s request for attendance to the Association of Black Cardiologists Spirt of the Heart Awards Dinner as an FDA representative; and 21. Since September 1, 2017, [Supervisor-2] failed to permit Complainant to attend a forum hosted by the Association of Black Cardiologists. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. A hearing was held from April 9 to 11, 2019. On September 1, 2020 the AJ issued a decision finding no discrimination. Specifically, the AJ found that Agency officials articulated legitimate nondiscriminatory reasons for their actions. With regard to claims 2, 3, 6 and 8, regarding Complainant’s ratings, the AJ reasoned that the ratings Complainant received were “hardly poor rating[s]” and they were on a par with, or higher than, the ratings of her peers. As for claims 9 through 16, the AJ found that Supervisor-2 (Caucasian, female, white, 58 years) articulated legitimate nondiscriminatory reasons for her actions; namely, unreplaceable staffing shortages, the absences of both Supervisor-1 (Caucasian, male, white, 64 years) and a coworker during that period, complaints from Complainant’s coworkers about her declining work contributions, reduced budget monies for training and travel, Complainant’s recent absences in May and June 2017, and the fact that suspended activities had a lower priority. As for the remaining claims, the AJ similarly found that the incidents all occurred during the time the facility was undergoing a reorganization, “the Agency needed staff at work, and budgetary constraints restricted off-duty and non-mission- critical time.” 2021000555 4 Further, the AJ found that Complainant failed to establish that the Agency’s articulated reasons were pretextual. Finally, with regard to harassment, the AJ found that the actions complained of were insufficiently severe and/or pervasive to constitute harassment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that she was subjected to discrimination as alleged. ANALYSIS AND FINDINGS Standard of Review 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. 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 contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2021000555 5 This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Here, with regard to claims 2, 3, 6, and 8, Supervisor- 1 averred that, due to Complainant’s lengthy detail during the rating period, he had to rely in part on the evaluation of the person who supervised Complainant during the detail (“Supervisor-3”) (African American, female, color unspecified, 46 years old). Supervisor-1 further averred that Supervisor-3 thought that Complainant did good job in some areas, but that she could improve in others and that “based on the feedback, it appeared there was room for improvement and, knowing [Complainant] and her work I did not interpret [Supervisor-3’s] feedback to support a rating of ‘outstanding’ during the 3 month detail.” At the hearing Supervisor-3 agreed that Complainant’s performance during her detail warranted a “more than ‘expected’ results. . . . something in the 4 range.” The AJ further found that Complainant’s scores were on a par with or higher than her coworkers and a review of the record confirms the AJ’s finding in this regard. With respect to claim 4, the July 11, 2016 Memorandum of Warning stated that it was due to Complainant’s repeated failure to follow instructions when communicating with upper management without first going through her chain of command. The December 8, 2016 Memorandum of Counseling, claim 5, stated that Complainant engaged in behavior that was “blameful, hostile, demeaning and/or disrespectful, as well as actions falling outside of accepted protocol, creating backlash from other internal stakeholders.” Regarding claim 7, the February 16, 2017, Letter of Reprimand, the letter stated that it was being issued because of Complainant’s failure to come into the office the prior week while attending an “external/offsite event” for which she had not sought authorization. As for claims 9 through 16 and 19, the record confirms the AJ’s finding that Supervisor-2 proffered reasons included: staffing shortages, including the absences of Supervisor-1 and another employee; a new boss for Supervisor-2; coworker had complaints about Complainant’s declining work contributions; a reduced budget for training and travel; Complainant’s recent absences; and the low priority of the activities Complainant sought to attend. With regard to claim 17, Supervisor-2 averred that some of Complainant’s day-to-day assignments were changed, as they similarly were with other coworkers, because of a “realignment” of the facility ordered by Supervisor 2’s new boss in response to staff shortages. Supervisor-2 further averred that Complainant’s “poor judgment and sharing information with external stakeholders” were factors “in the background” when Complainant’s daily assignments were changed. Finally, with respect to claims 20 and 21, Supervisor-2 explained that she did not consider Complainant to be the best Agency representative to attend the events. Nonetheless, in the end Complainant did attend and she was reimbursed for her out-of-pocket expenses. 2021000555 6 With the Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretext for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to her evaluations, Complainant disagreed with the evaluations she received and maintains that her performance deserved higher evaluations. In addition, she argues that the accusation of not carrying her weight failed to take into account the fact that “incoming inquiries to the Patient Team mailbox are distributed to the responsible staff member based on the topic, so if I am not responding to as many outside requests that come through this system, it is because few are diabetes or cardiovascular related.” Additionally, she argues that her frequent face to face contacts with her constituents reduced the need for them to call or write in. We note, however, that while management may not have been fully aware of every detail of Complainant’s performance, that does not tend to establish that management’s articulated reasons for Complainant’s ratings are a pretext. Furthermore, Complainant’s belief that she was entitled to a higher evaluation is insufficient to establish pretext. As for the various memoranda and letters of warning/counseling, Complainant averred that she had a personal relationship with the Agency head who was one of the individuals she was warned against contacting directly. We note that such an argument does not alter the fact that she was contacting upper management without notifying her own chain of command, thus putting them in an awkward position. With respect to the opportunity to attend external events, denial of telework, denial of leave, and the change of her duties in September 2017, Complainant disagreed with management’s decisions, but again has not shown that the Agency’s articulated reasons for its actions were pretextual. We find that Complainant has also not shown that Agency officials harbored discriminatory animus towards her protected bases in any of the above-mentioned claims. Based on a review of the record, we find that Complainant has not established that the Agency’s articulated reasons for its actions are pretextual. Therefore, the AJ’s findings in this regard are supported by substantial evidence and the Commission discerns no basis to disturb the AJ’s conclusion. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. 2021000555 7 See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she: received lower evaluations; received various memoranda and letters of counseling/warning; was denied the opportunity to attend external events; denied telework and leave; other factors occurring in June and September of 2017; and the change of her duties in September 2017, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded, based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment: on June 2, 2017, Supervisor-2 accused her of failing to meet an assignment deadline; and since September 1, 2017, Supervisor-2 has denied Complainant’s requests to meet and discuss the changes in her job responsibilities. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). Following a review of the record, we find that Complainant has not shown that the actions involved, or were based on, her protected bases nor does she describe actions sufficiently severe and/or pervasive to alter the conditions of her employment. Therefore, the AJ’s finding of no harassment is supported by substantial evidence and upheld. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown, by a preponderance of the evidence, that discrimination or reprisal occurred. The Agency’s final order is hereby AFFIRMED. 2021000555 8 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). 2021000555 9 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 August 24, 2022 Date