U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Livia C.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency. Appeal No. 2021002865 Hearing Nos. 531-2019-00592X 531-2020-00105X Agency Nos. HHS-CMS-0321-2018 HHS-CMS-0094-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), 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., 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. At the time of events giving rise to this complaint, Complainant worked as a Contracting Officer (GS-14) at the Agency’s Centers for Medicare and Medicaid Services in the Office of Acquisition and Grants Management in Baltimore, Maryland. On October 15, 2018, Complainant filed an EEO complaint (Agency case number HHS-CMS- 0321-2018) alleging that the Agency discriminated against her on the bases of race (African- American), sex (female), color (Black of fair complexion), disability (arthritis, hearing loss), and 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. 2021002865 2 age (70) when on May 17, 2018, it did not select her for vacancy announcement number CMS- OAGM-18-10146551-IMP, for a Supervisory Contract Specialist GS-15 position.2 On January 28, 2019, Complainant filed another EEO complaint (Agency case number HHS- CMS-0094-2019) alleging that the Agency subjected her to discrimination and harassment on the bases of race, sex, disability and age, and in reprisal for prior protected EEO, for thirteen incidents. Examples of the harassing conduct include Complainant’s supervisor aggressively questioning and criticizing Complainant; calling to discuss work matters while Complainant was out on sick leave; and making Complainant feel uneasy when he entered her office to request a manila envelope. Complainant also alleged discrimination when the Agency denied her request for a reassignment and delayed approving her request for a reasonable accommodation (ability to call into meetings). At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigations and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. In the AJ’s Case Management Orders, issued on July 22, 2019, and December 17, 2019, she notified the parties that their motions and correspondences shall not exceed 25 pages in length, without prior approval from the AJ. On June 3, 2020, the Agency filed a single Motion for a Decision Without a Hearing for both complaints, which Complainant opposed. On July 17, 2020, the Agency filed a Motion to Strike and Reply Brief in Support of its Motion for a Decision Without a Hearing, requesting that the AJ strike Complainant’s opposition brief because it did not comply with the AJ’s previous orders that motions and correspondences not exceed 25 pages. The Agency noted that Complainant’s opposition brief was 43 pages, and that Complainant did not seek prior approval from the AJ before submitting her brief that exceeded the page limit by 18 pages. On March 1, 2021, the AJ issued a joint decision without a hearing. As an initial matter, the AJ noted that Complainant did not respond to the Agency’s Motion to Strike, and she decided to strike the last 18 pages of Complainant’s opposition brief. Regarding the non-selection claim, the AJ found that, for the purposes of the decision, Complainant established a prima facie case of disparate treatment based on sex, disability, and age, and that the Agency provided a legitimate nondiscriminatory reason for choosing the selectee. For example, the selectee demonstrated leadership skills and had a greater depth of experience with contracts. 2 Complainant also initially alleged that the Agency failed to engage in an interactive dialogue regarding her reasonable accommodation request, but she withdrew this claim on January 15, 2019. Report of Investigation 1 at 189. 2021002865 3 The AJ found that Complainant was unable to effectively dispute the selectee’s greater depth of experience with contracts and that Complainant’s additional years of experience did not automatically make her the better-qualified candidate, and the AJ concluded that Complainant provided no evidence to prove that she possessed plainly superior qualifications. The AJ also found that there was no evidence to support Complainant’s assertion of a preselection, and even if there was preselection, there was no evidence of an unlawful motivation. The AJ determined that Complainant did not show pretext for discrimination when she was not selected for the Supervisory Contract Specialist position. The AJ also found that Complainant provided no evidence that the circumstances of the alleged reassignments of the other named employees were similar to her circumstances. Specifically, the AJ noted that, unlike Complainant, all sought vacant positions or were selected for positions for which they applied. The AJ further determined that the evidence in the record showed that the Agency acted promptly on Complainant’s reasonable accommodation request, and that there was no delay in granting her accommodation request or an unreasonable delay of the accommodation itself. While the record did not include a timely written agreement, this never prevented Complainant from receiving any accommodation that she sought. Regarding Complainant’s harassment claim, the AJ noted that it was made up of isolated events over an eight-month period, from August 2, 2018 to April 9, 2019. However, the AJ noted that an unpleasant workplace that contains disagreements with managerial decisions or approach; unreasonable deadlines; and a heavy workload was not sufficiently severe or pervasive to alter the conditions of one’s employment and create an unlawful working environment under the law. Further, the AJ found that Complainant did not produce any evidence to show that the actions would not have occurred but for her race, color, sex, disability, age, or engagement in EEO activity. The AJ concluded that there were no genuine issues of material fact necessitating resolution by a hearing, and she granted the Agency’s Motion for a Decision Without a Hearing. 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). 2021002865 4 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 she 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 because she did not identify any disputed material facts. As such, we find that a decision without a hearing was appropriate. Complainant also argues that the AJ erred when she committed a “harmful procedural error” by stating that she did not receive Complainant’s response to the Agency’s Motion to Strike and when she did not allow a 50-page limit for Complainant’s two complaints, which were not consolidated. We note that under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dep’t of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). We find that the AJ acted within her discretion to limit the parties’ motions and correspondences to 25 pages and require that they request permission if they wished to exceed the page limit. Complainant asserts that the AJ committed a “harmful procedural error” by stating that she did not receive Complainant’s response to the Agency’s Motion to Strike when it was emailed to the AJ. With her appeal, Complainant provided proof that her then-attorney emailed a response to the Agency’s Motion to Strike, in which Complainant argued that she had two distinct cases and was entitled to submit a 50-page opposition brief. It appears that the AJ was mistaken when she stated that Complainant did not respond to the Agency’s motion. However, Complainant only made a general claim of a harmful procedural error, without explaining how the AJ’s mistake was harmful. While Complainant argues that her complaints were not consolidated, and it was reasonable to assume that she was allowed a 50-page limit for the two complaints, it is undisputed that Complainant did not contact the AJ to confirm her assumption before filing her opposition brief. We also note that it is undisputed that Complainant’s opposition brief was a single document, and therefore, subject to the AJ’s specified page limit. Complainant also argues that the AJ erred when she failed to consider the entirety of her opposition brief. However, Complainant did not explain how any of the information in the remaining 18 pages of her opposition brief would have affected the AJ’s decision. The AJ carefully considered the entire record when she analyzed Complainant’s claims and provided a thorough analysis in her decision. Complainant has not challenged any of the AJ’s findings on appeal. 2021002865 5 As such, we find that the AJ did not commit a harmful procedural error, nor abuse her discretion, when she decided to only consider the first 25 pages of Complainant’s opposition brief in response to the Agency’s Motion for a Decision without a Hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. 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. 2021002865 6 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. 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 February 17, 2022 Date
