U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilian C.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency. Appeal No. 2021002917 Hearing No. 530-2020-00111X Agency No. HHS-CMS-0679-2019 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 17, 2021 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. At the time of events giving rise to this complaint, Complainant worked as a Health Insurance Specialist, GS-0107-13, at the Agency’s Philadelphia Certification & Enforcement Brach (PCEB) facility in Philadelphia, Pennsylvania. On June 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (filing four prior EEO complaints) when: 1. On March 12, 27, 28, and between April 9 and 19, 2019, the Branch Manager, Philadelphia Certification and Enforcement Branch (PCEB), Philadelphia Division of Survey & Certification (PDSC), Consortium for Quality Improvement and Survey & 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. 2021002917 2 Certifications Operations (CQISCO), constantly asked Complainant for updates and information regarding Complainant’s work product. 2. In April 2019, the Branch Manager, PCEB, assigned Complainant more cases than all other PCEB employees. 3. On April 10 and April 16, 2019, the Branch Manager, PCEB, forced Complainant to adhere to newly created mandatory policies and guidelines which applied only to Complainant. 4. On April 16, 2019, and other unspecified dates, the Branch Manager, PCEB, failed to timely submit Complainant’s work product. After its investigation into the complaint, 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. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2021002917 3 Here Complainant’s claims were addressed by the AJ in both the disparate treatment and discriminatory harassment contexts. The record reflects that the Agency articulated legitimate, nondiscriminatory reasons for the conduct in Claims 1-4. As to Claim 1, regarding Complainant being constantly asked for updates about her work product, the Agency stated that Branch Manager, PCEB, is responsible for ensuring that work is completely timely and accurately and she asks for updates to ensure this. The record contains multiple emails sent by Branch Manager, PCEB, to parties other than Complainant asking for status updates. As to Claim 2, regarding Complainant’s contention that she was assigned more work than her colleagues, Branch Manager, PCEB, testified that the amount of work done by Complainant is not more than all of the PCEB employees and she did not assign Complainant more cases than all other PCEB employees. She further noted that the amount of work performed by Complainant is not disproportionate to her peers. She stated Complainant contention about her disproportionate workload are untrue and Pennsylvania does not constitute 50% of the workload in the division. She further noted that when there are staff shortages, she has to divide work evenly, but Complainant only handles long-term cases. As to Claim 3, that Complainant was required to adhere to new policies that only affected her or disproportionately affected her, Complainant admits the specific policy did not apply to just her and that Branch Manager, PCEB, notified everyone via email of the new process. The new policy applied to the entire office. As to Claim 4, regarding Complainant’s assertion that Branch Manager, PCEB, failed to timely submit Complainant’s work product, the Agency states that they have been short staffed and that Branch Manager, PCEB, has multiple submissions to manage. Branch Manager, PCEB, also indicated that some of Complainant’s letters may take longer to return because she finds errors when reviewing them. Regardless, affidavits indicate that other PCEB employees are also awaiting approval from Branch Manager, PCEB, for some of their submissions, and that in general there has been a delay on letters being returned with a signature. One employee indicated there is no standard turnaround time and another indicated a recent average of 35 days turnaround time for submissions. Complainant has not produced any evidence beyond her bare assertions that the Agency was motivated by retaliatory animus for Complainant’s prior EEO filings, that Complainant was treated differently than others, or that the Agency has engaged in any actions that could dissuade a reasonable employee from making or supporting a charge of discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Branch Manager, PCEB, contends Complainant has performance issues and Complainant disagrees and contends that Branch Manager, PCEB, does not provide guidance or clarification. The Commission finds no persuasive evidence that Complainant's prior EEO activity was a factor in any of the Agency's actions. There is nothing in the record that demonstrates that the Agency's reasons are not worthy of credence. 2021002917 4 Similarly, when evaluating Complainant’s claim of discriminatory harassment, the Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents common workplace occurrences and were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming, arguendo, that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Moreover, routine supervision and managerial discipline or personality conflicts and general workplace disputes unrelated to a protected basis are insufficient to establish a hostile work environment claim. See Complainant v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120131234 (2015). We are not persuaded by Complainant’s argument that she was denied due process in that no discovery order was issued by the AJ. The Notice of Intent to Issue a Decision Without a Hearing (“Notice”) specifically ordered the parties to respond with specific evidence showing there is a genuine dispute of material fact. Additionally, in boldface type, the Notice stated “If a party has reason to believe that there exists evidence, in the possession of the other party, that would indicate the presence of a genuine issue of material fact, the party must, to the best of his or her ability, describe the evidence in their response. Again, do not recite mere allegations or denials.” Complainant failed in her response to the Notice and in her brief in support of her appeal to identify any such evidence. Thus she was provided an opportunity to indicate what discovery was needed but Complainant declined to do so. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021002917 5 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). 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. 2021002917 6 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 4, 2022 Date
