[Redacted], Sherrie M., 1 Complainant,v.Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Mar 16, 2021

Appeal No. 2020001457 (E.E.O.C. Mar. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherrie M.,1 Complainant, v. Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency. Appeal No. 2020001457 Hearing No. 570-2017-00573X Agency No. HHS-OS-0048-2015 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 1, 2019 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Telecommunications Specialist, GS-0391-15, in the Agency’s Technology Management Branch (TMB), Division of Administrative Management, Office of the Chief Operating Officer in Washington, D.C. On September 29, 2015 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (55), and in reprisal for prior protected EEO activity when: 1. Complainant was subjected to harassment from 2010 to the present based on retaliation 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. 2020001457 2 a. Since 2010 to the present, the Agency treated Complainant differently than other GS-15s through marginalizing her professional role and authority, acting roles, exclusion from office (non-TMB) planning, and senior staff activities; b. Since 2010 to present, vacant positions in her Section within the IO/COO were not approved for hiring and many requests, including work-related actions, were not acted on or experienced significant delays; c. Since 2010 to the present, the Agency dismissed positive feedback concerning Complainant, including her 2010 PMAP rating, which included an element from an office (OCIO) she was detailed to for the majority of the rating period; d. In 2010, the Agency would not support a continued detail to OCIO, while other employees were approved detail opportunities; e. Since 2013, and prior to the June 25, 2015, request, Complainant made three requests to work temporary at an alternative duty station in Texas, all were met with different responses and restrictions, and none were formally acted on above the Branch Chief level; and f. On or about April 21, 2013, Complainant was assigned to the ASPR, Immediate Office of the Chief Operating Officer notwithstanding the fact that the realignment authority (ASA/ASPR memorandum approved April 12, 2013) was for renaming the Office of Preparedness and Emergency Operations to Office of Emergency Management which also states all personnel will continue their roles. 2. Complainant was subject to harassment on the bases of her age and reprisal when: a. On July 6, 2015, the Agency denied Complainant’s request for a modified telework alternate duty station, which was then upheld on July 13, 2015, and on August 17, 2015; and b. On August 31, 2015, the Agency denied Complainant’s request to work remotely outside of her official duty station. 3. Complainant was subject to harassment on the bases of her sex, age, and reprisal when: a. Complainant’s requests for a detail were denied, the most recent denial occurred on March 30, 2016; b. Complainant’s reporting requirements, including daily and weekly statuses, are more restrictive than her male counterparts, and she is excluded from meetings and normally not approved to work at the Frederick location; c. Management pursued more severe discipline of Complainant as compared to her male counterparts, including the Division level; d. Since the November 2015 realignment, although she was hired to be a Branch Chief, management failed to consider Complainant for a Branch Chief role as part of the DAM realignment, and staff was removed who previously reported to her, along with several vacancies; e. The duties associated with the realignment remain loosely defined and have created significant inefficiencies for which she has been disciplined; f. The Division Chief denied her requests to meet; 2020001457 3 g. On March 30, 2016, the Agency issued Complainant a proposed suspension for 14 days, which was later rescinded; h. In February 2016, the Agency charged Complainant with three hours of Absent Without Leave (AWOL); i. In March 2016, the Agency charged Complainant with one hour of AWOL; and j. On June 3, 2016, the Agency issued Complainant a 14-day suspension. 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 Agency submitted a motion for summary judgment. 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 or reprisal 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 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020001457 4 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). 2020001457 5 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 March 16, 2021 Date