Sheila V.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120172244 (E.E.O.C. Feb. 8, 2019)

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.
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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.
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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.
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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
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(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