U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nina M.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021003341 Hearing No. 410-202 l-00043X Agency No. HHS-CDC-0489-2020 DECISION On May 21, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from an April 29, 2021 final Agency order on 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. BACKGROUND During the period at issue Complainant was employed by the Agency as the Quality & Safety Systems Branch Chief ("Branch Chief"), GS-0601-15, within the Division of Laboratory Systems ("Division"), which is part of the Center for Surveillance, Epidemiology, and Laboratory Services ("Center") in Atlanta, Georgia. On July 14, 2020, Complainant filed an EEO complaint alleging that she was subjected to discrimination and a hostile work environment based on her sex (female) 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. 2021003341 2 1. On December 2, 2019, she received an email from the Division Director (male), who was her first line supervisor, asking her to vacate her branch chief office. 2. On December 18, 2020, the Division Director issued her a proposed suspension. 3. She received a decision to suspend her from January 8-10, 2020, by the Center Director (male), who was her second line supervisor. 4. On February 19, 2020, the Center Director wrongfully rejected her administrative grievance. After an EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over her objection, the AJ granted the Agency’s motion for summary judgment, and found no discrimination or unlawful retaliation was established. The Agency issued a final order adopting the AJ’s decision. The instant appeal from Complainant followed. On appeal, the parties make no argument. 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). This regulation mirrors the summary judgment procedure in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has ruled that summary judgment is proper when a court determines, using the substantive legal and evidentiary standards that apply to the case, that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s job is not to weigh the evidence. Its job is to determine if there are genuine issues for trial. Id. at 249. The evidence of the party who did not request summary must be believed and all justifiable inferences drawn in their favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the party who did not request summary judgment. 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. If a case can only be resolved by weighing conflicting evidence, making a decision without holding a hearing is improper. 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 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. 2021003341 3 To prevail on her disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In addition, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected basis - sex or reprisal. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. On issue 1, the evidence of record supports the AJ’s finding that because Complainant stopped being Branch Chief around November 22, 2019, the Division Director asked her to move out of the branch chief office so her successor could use it to privately discuss performance reviews with Complainant’s former subordinates, which were scheduled to occur around that time. By email on December 2, 2019, to Complainant and her successor, the Division Director requested that in light of their job changes Complainant move to a specified vacant office and the successor to the branch office. The next day Complainant asked to not move or move to another office in the Branch. The Division Director declined, explaining there were no other vacant offices in the Branch. After some back and forth, Complainant requested to move to a Branch cubicle, and on December 3, 2019, the Division Director replied that was fine, so long as it was okay with her. On issues 2 and 3, the AJ correctly found the evidence showed Complainant was suspended based on the results of a December 2, 2019 fact-finding investigation by the Strategic Business Initiatives/Business Integrity and Strategic Management Unit that determined: (1) Complainant used 6 hours of official government time to represent her personal business (Soter Biocorp) during a three-part webinar series on January 23, April 10, and June 21 in 2018; and (2) used her public office for private gain by soliciting work and submitting a Statement of Work for her company to work with CDFR, a private company, funded by Department of State after being told she could not. Complainant contended that the fact-finding occurred because of an ethics complaint from a disgruntled former employee who had a grudge against her. 2021003341 4 On November 22, 2019, Complainant resigned effective January 10, 2020, to take a job with Georgia State University. It was for this reason that the suspension ran to January 10, 2020. On issue 4, the Center Director denied Complainant’s administrative grievance on her suspension because the administrative grievance process only applies to active employees. By adoption of the Agency’s Motion for Summary Judgement, the AJ correctly found this was the reason that the Center Director denied Complainant’s administrative grievance. In sum, based on our de novo review of the evidence of record, we conclude that the AJ’s finding that Complainant was not subjected to disparate treatment or a hostile work environment based on her sex and/or unlawful retaliation is supported by a preponderance of the evidence. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 2021003341 5 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. 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. 2021003341 6 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 26, 2023 Date
