Sheila V.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20190120172244 (E.E.O.C. Feb. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheila V.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 0120172244 Hearing No. 410-2015-00398X Agency No. HHSFDAORASE01215 DECISION On June 15, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency’s College Park facility in Georgia. 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. 2 An EEOC Administrative Judge issued an Order Entering Judgment, dated February 2, 2017. Pursuant to 29 C.F.R. § 1614.109(i), where an agency does not issue a final order within 40 days of receipt of the Administrative Judge's decision in accordance with § 1614.110, the decision of the Administrative Judge becomes the final action of the agency. 0120172244 2 On March 19, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Anxiety, Depression, Post Traumatic Stress Disorder, Bipolar Disorder, Insomnia, Arthritis and Breast Cancer) and reprisal for prior protected EEO activity when: 1. on December 18, 2014, Complainant’s Supervisor (S1) issued her a “Letter of Caution: Excessive Unscheduled Leave;” 2. on March 25, 2014, an Acting Supervisor (S2) taunted Complainant by banging on her desk and stating, “I’m saying good morning to you;” 3. on March 24, 2014, S2 continuously repeated “Good morning;” 4. on March 21, 2014, S2 charged Complainant with 5.5 hours of absence without leave (AWOL)3 and denied her request to use sick leave, after she took leave due to her disability the day before; and 5. on March 7, 2015, Complainant’s appointment with S1 to discuss her Performance Management Appraisal Program (PMAP) score was cancelled and the score was sent forward for administrative processing for cash and awards without discussion with Complainant. The Agency investigated Complainant’s claims. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. On December 12, 2016, the AJ held a hearing. The evidence of record, developed during the investigation and at the hearing, shows regarding claim (1), Complainant stated that S1 “ambushed” her about four absences but did not counsel her at any time before issuing the Letter of Caution. As to (2), Complainant stated that she arrived at work and was walking to her desk with her headphones on when S2 tried to get her attention repeatedly. She stated that technically she was not at work yet. Complainant stated that S2 shut a door in her face days earlier. With regard to (3), Complainant stated that S2 was speaking with a coworker, but when she arrived at work S2 came to her cubicle and repeatedly said “Good Morning.” Complainant said that she felt “threatened and intimidated.” Regarding (4), Complainant stated, on March 20, she passed out and was taken home, but when she tried to return to the office the next day, S2 blocked her entrance and shut the door in her face. Complainant stated that she sent management a message the evening before to inform them what happened to her. She stated that S2 collected information about the March 20 incident and still refused to change the AWOL charge. For (5), Complainant stated that she is the only confidential administrative staff in her office and PMAP scores usually go through her, but S1 sent all of them directly to Administration that year. Complainant stated that she did not have an opportunity to discuss the score with management. Complainant stated that when S1 gave her PMAP score, it was the lowest of her government career. 3 Complainant challenged the AWOL charge, and it was reversed in December 2014. 0120172244 3 In response to Complainant’s claims, S1 stated that she issued Complainant a Letter of Caution to formalize her awareness of a leave issue. S1 stated that Complainant used a substantial amount of leave while under her supervision, which had a negative impact on the office, and she had verbally informed Complainant of concerns previously. S2 stated that he was only aware of Complainant’s medical conditions based on information she shared verbally in office. S2 stated that Complainant is his timekeeper, but other than that he would have had no reason to be at her work area. He stated that he did not bang on her desk. S2 stated that he was at another employee’s workspace when Complainant arrived to work and he spoke to her. S2 explained that Complainant stated that she did not want to speak to him and he told her that he would oblige her request from now on. S2 stated, “Speaking to someone is not harassment,” and he no longer spoke to her after she requested he not do so. S2 stated that Complainant was absent and not on approved or pending leave on March 20 so she was charged as AWOL. S2 stated that Complainant and other staff were scheduled to attend mandatory training at 1:00 p.m. that day. Complainant was last seen in the office at 10:30 a.m. on March 20. S2 stated, on March 21, Complainant attempted to input her absence as sick leave although she did not have approved leave. S2 stated that Complainant was upset on March 21, and he only communicated with her via email regarding AWOL. S2 stated, later, he informed Complainant that she would have to communicate with upper management to rescind the AWOL charge. S2 stated that he did not shut his door in Complainant’s face, and only closes his door if he is having a private conversation or meeting. S2 stated that Complainant and another employee were known to be tardy, not working, or absent during their supervisor’s absence so he let them know informally when he served as acting he would hold them accountable for being in pay status. S2 stated that Complainant did not follow the emergency leave approval process. S1 stated that she and Complainant met for about an hour on April 20, 2015 about her PMAP, and Complainant did not express concern about her ratings. On February 2, 2017, the AJ issued a decision, finding that the Agency did not discriminate against Complainant as alleged. Specifically, the AJ stated that Complainant was not aggrieved by the actions alleged in incidents (1) through (3) and (5), and that Complainant failed to show the Agency’s actions were based on discriminatory motives. The AJ found that Complainant’s allegations of disparate treatment and hostile work environment harassment failed. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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. 0120172244 4 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). After a careful review of the record, we find the AJ's decision is supported by substantial evidence in the record. Complainant failed to present persuasive evidence that she was subjected to severe or pervasive conduct which rose to the level of a hostile work environment. Furthermore, she failed to provide persuasive evidence that contradicted the legitimate, nondiscriminatory reasons articulated by responsible Agency officials for the disputed actions and the evidence does not support a finding of discriminatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final action. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal 0120172244 5 (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 8, 2019 Date Copy with citationCopy as parenthetical citation