0120150059
03-16-2017
America K.,1 Complainant, v. Thomas E. Price, MD., Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
America K.,1
Complainant,
v.
Thomas E. Price, MD.,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120150059
Agency No. HHSCDC03292013
DECISION
On September 27, 2014, Complainant filed an appeal prior to receiving a final decision from the Agency. The Agency eventually issued a final decision dated September 30, 2015, concerning Complainant's 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
In the instant appeal, we examine whether the final agency decision (FAD) properly found that Complainant did not establish that she was discriminated against or subjected to harassment based on her race (African American), sex (female), color (Black), disability, age (67), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 with regard to 12 incidents which formed the basis of her hostile work environment claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-6, at the Agency's Center for Disease Control and Protection in Atlanta, Georgia. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On November 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases articulated in the statement of Issues Presented above as evidenced by 12 separate incidents to include: issuance of a used work cell phone, two suspensions, receipt of an "Unacceptable" performance rating, and other matters.
Complainant requested to amend her complaint eight times on different occasions in 2013 and 2014, with the final amendment taking place on October 2, 2014. Complainant, on this date, was also advised that issues 5-7 and 14 were not being accepted as part of the complaint. The remaining issues were accepted for investigation and Complainant filed an appeal on the dismissed issues. The instant appeal number was assigned to Complainant's appeal of the dismissed issues. Complainant's remaining claims were investigated between October 29 and December 15, 2014.
Due to the procedural posture of the case, Complainant did not request a hearing or a FAD. The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on September 30, 2015. In addition to reviewing the Agency's dismissal of issues 5-7 and 14, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The FAD determined that the dismissal of issues 5-7 were proper as these issues either stated the same claim as another issue accepted for investigation or were not within the jurisdiction of the EEO process. With respect to issue 14 the FAD determined that Complainant was unable to establish that she suffered a harm or loss to a term, condition or privilege of employment and therefore she failed to state a claim.
On appeal, Complainant requests that the Commission remand this matter for an investigation of all her discrimination complaints and alleged civil rights violations under Agency Number HHS-CDC-0329-2013.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII, Rehabilitation Act, and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on race, color, sex, disability, age and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions with regard to incidents Complainant cites to establish her harassment claim. We also find that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
With respect to Complainant's allegations that a contractor was trained to perform the duties of her position, the record reflects that contractors are typically hired by the Agency to serve as backups on the loading docks when Technicians take leave, and that they need training to adequately fulfill the duties. The contractors will only receive this training when it is necessary for them to perform duties while a Technician is on leave.
Complainant's allegation that she was issued a used cell phone is mere speculation and not supported by record evidence. The Principal Management Official testified that while he recalled issuing a pre-issued cell phone to a contractor, as well as, receiving one himself after his broke, he did not recall issuing Complainant a used cell phone. He stated that not all employees are issued cell phones, but when they are the phones are typically new. The Facilities Management Specialist testified that Complainant returned the cell phone she was issued because she discovered that it had not been activated.
Three of the incidents in the underlying complaint concern the Agency's method of delivery of two disciplinary actions and a performance plan to Complainant. In each instance, the record reflects that management was left with no other option to ensure Complainant's receipt of the documents. At a May 23, 2013, meeting to discuss Complainant's Performance Assistance Plan (PAP), the record indicates that Complainant became agitated, refused to sign the plan and left the meeting. A similar series of events happened at a meeting regarding a written reprimand, and in a separate instance, Complainant refused to attend a meeting to discuss her suspension. After consulting with Employee Relations, management decided that sending the documents via interoffice mail was appropriate.
Complainant argued that she was suspended from duty between July 28, 2014 and August 11, 2014 in retaliation for failing to do something that was not a part of her official duties. The record reflects that Complainant has been counseled on numerous occasions about signing a "Delivery Receipt for bar-coded equipment," and that she has failed to consistently fulfill this job function since November 2011. The suspension was noted as a final attempt to address Complainant's failure to adhere to this policy.
With regard to Complainant's allegation that her Federal Employee Health Benefits would be terminated while she was "illegally suspended," the Agency noted that this was inaccurate. The record reflects that while a federal employee is in a non-pay status they are responsible for either terminating their enrollment in a health benefit plan, or arranging payment of the employee share of the premium to keep the coverage active. If the employee is unable to make the premium payment while in a non-pay status, they have the option of arranging to incur a debt to repay the premiums when the return to a pay status.
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's performance and conduct in the workplace. Nothing in the record, or submitted on appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find no evidence of unlawful motivation in the instant matter.
Harassment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
_3/16/17_________________
Date
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.
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