0120142504
01-04-2017
Claudia A.,1 Complainant, v. Sylvia Mathews Burwell, 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
Claudia A.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120142504
Hearing Nos. 410-2012-00400X, 410-2013-00102X
Agency Nos. HHS-CDC-0071-2012, HHS-CDC-0305-2012
DECISION
On June 23, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's final action2 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. For the following reasons, the Commission AFFIRMS the Agency's final action.
ISSUES PRESENTED
The issues presented are whether substantial evidence in the record supports AJ1's finding that: (1) the Agency did not subject Complainant to disparate treatment on the basis of race (African-American) when it, in October 2011, assigned her duties that did not align with her position description; and (2) the Agency did not subject Complainant to disparate treatment on the basis of reprisal for prior protected EEO activity (May 2012) when, in June 2012, it counseled her.3
BACKGROUND
At the time of events giving rise to this matter, Complainant worked as a GS-0343-12 Program Analyst at the Agency's Office of the Director, Office of Communications (OC), in Atlanta, Georgia. Complainant's coworkers in OC were all GS-1001-13 Health Communications Specialists (C1, C2, C3 - Caucasian, female). Beginning in April 2011, Complainant's first-level supervisor was the Associate Director of Communications (S1 - Caucasian, female).
Assignment of Duties
According to Complainant's GS-0343-12 Program Analyst position description, she "analyzes current and proposed operating programs to evaluate their actual or potential effectiveness in achieving objectives."
Previously, Complainant filed an EEO complaint (Agency No. HHS-CDC-1415-2008/ Hearing No. 410-2009-00336X) alleging, in pertinent part, that the Agency discriminated against her on the basis of race when she received a desk audit indicating she was not performing duties that supported her position description. On August 23, 2010, an AJ (AJ2) issued a decision finding no discrimination. Among other things, AJ2 found the following: the Agency transferred Complainant into OC while retaining her prior position series and grade (GS-0343-12 Program Analyst) after the prior program she worked on was disbanded; the position description that she retained when the Agency transferred her bore no relation to the duties that she performed in OC; Complainant performed largely the same duties as her OC coworkers who were in a different position series and grade; and the Agency's motivation for its actions was "to find her a job when she did not have one." We note that the Agency submitted AJ2's August 23, 2010, decision in Agency No. HHS-CDC-1415-2008 / Hearing No. 410-2009-00336X as part of its April 24, 2013, motion for a decision without a hearing in the instant case.
In an October 18, 2011, email, Complainant informed S1 that she did not believe her assigned duties aligned with her position description. Specifically, Complainant stated the following:
I have concerns about my role/responsibilities in OC . . . Unfortunately, my role . . . has been provisional after [OC] was reorganized . . . in 2006. I've pitched in where my skill set allowed, but after five (5) years, it's time for me to advocate for ongoing and reasonable duties and responsibility comparable to my grade, training, experience, and position description.
In an October 23, 2011, email, S1 assigned Complainant six new duties: technical assistance analysis; logic model development; metrics evaluation; e-bulletin compilation and analysis; standard operating procedures; and the lead role for SharePoint.
In an October 27, 2011, one-on-one meeting, Complainant discussed her newly assigned duties with S1. Complainant and S1 disagreed about whether they aligned with her position description.
Complainant and S1 continued to discuss Complainant's concerns about her duties. In a February 15, 2012, email, Complainant stated to S1: "First, let me say that I really appreciate your efforts in working to resolve my position concerns. Unfortunately, this situation was created before you arrive[d] in [OC] . . . Again. I appreciate your efforts . . ."
At Complainant's request, Human Resources (HR) conducted a desk audit of her position. In a September 10, 2012, "Desk Audit Report of Findings Summary," HR found that Complainant was assigned duties that did not fully align with her GS-0343-12 Program Analyst position description. Specifically, HR found that Complainant performed program analyst duties, health communication duties, contracts/procurement/acquisition duties, administrative/clerical duties, and information duties. HR recommended that Complainant's position be reclassified as a GS-1001-12 Health Communications Specialist.4
Complainant alleged that S1 subjected her to disparate treatment on the basis of race. Specifically, Complainant alleged that S1 did not assign C1, C2, and C3 duties that did not align with their GS-1001-13 Health Communications Specialist position description.
Counseling5
In a June 7, 2012, email, Complainant recounted to S1 a one-on-one meeting they had and characterized S1's behavior when addressing her as "speaking to your candy dish." At a June 14, 2012, one-on-one meeting, S1 counseled Complainant about the email. Specifically, S1 informed Complainant that her comment was insubordinate, unprofessional, and disrespectful. In addition, S1 instructed Complainant to research communication courses to take.
Complainant alleged that S1 subjected her to disparate treatment on the basis of reprisal for her May 2012 EEO activity. Specifically, Complainant alleged that, in a similar incident, S1 gave C1 an opportunity to discuss inappropriate behavior without counseling her or instructing her to research communication courses to take. Complainant cited a January 23, 2012, email in which S1 stated to C1: "I've heard from [an outside contractor] that you do not wish to participate in the . . . project . . . My concern is the manner in which you presented yourself to him. He found your behavior to be disrespectful and unprofessional. Let's talk about this as I want to hear your point of view."
EEO Complaints
Complainant filed EEO complaints alleging that the Agency discriminated against her:
1. On the basis of race (African-American) when, in October 2011, S1 assigned her duties that did not align with her position description; and
2. On the basis of reprisal for prior protected EEO activity (May 2012) when, in June 2012, S1 counseled her.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing and AJ1 consolidated her complaints. On May 8, 2014, AJ1 held a hearing. Complainant was the only witness who testified. Complainant did not call any other witnesses. After Complainant testified, the Agency moved for a directed verdict and the hearing concluded.
On May 30, 2014, AJ1 issued a decision finding no disparate treatment on the bases of race or reprisal for prior protected EEO activity. Specifically, AJ1 found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Moreover, AJ1 found that Complainant did not show that the Agency's reasons were a pretext for discrimination. AJ1 stated that he based his findings on his review of the ROIs, the additional documents submitted during the hearing process, and Complainant's testimony at the hearing.
Regarding claim 1, AJ1 found the following: When OC was reorganized prior to 2011, the Agency found an opening for Complainant that required some duties that did not align with her position description, including some Health Communications Specialist duties. Although the Agency assigned Complainant duties that did not align with her position description, it was giving her its only available work and it was done in the reorganization in an effort to help her keep her job. Complainant performed a variety of duties for several years. Complainant recognized that the issue with her assignment of duties pre-dated S1's supervision. C1, C2, and C3 were not proper comparators because how work was assigned to Health Communications Specialists was not relevant to how work was assigned to her as a Program Analyst.
Regarding claim 2, AJ1 found the following: S1 counseled Complainant because she objected to Complainant's email containing the comment "speaking to your candy dish." C1 was not a proper comparator because C1's inappropriate conduct was with, and had generated a complaint from, a person external to their work unit; in contrast, Complainant's inappropriate conduct was directly with her supervisor, S1.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that AJ1 ignored the documentary and testimonial evidence she presented. Among other things, Complainant reiterates that the Agency, by assigning her duties that did not align with her position description, treated her differently than C1, C2, and C3. In addition, Complainant argues that the Agency did not comply with its established procedures related to reorganizations and the assignment of duties. Moreover, Complainant reiterates that the Agency, by counseling her, treated her differently than C1.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an Administrative Judge 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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An Administrative Judge's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An Administrative Judge'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 EEO MD-110, Ch. 9, at � VI.B. On appeal, the burden is squarely on the party challenging the Administrative Judge's decision to demonstrate that the Administrative Judge's factual determinations are not supported by substantial evidence. Id. at � VI.C.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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).
Upon review of the record, we find that substantial evidence in the record supports AJ1's finding that the Agency did not subject Complainant to disparate treatment on the bases of race or reprisal for prior protected EEO activity. Specifically, we agree with AJ1 that Complainant did not prove, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretextual.
Regarding claim 1, the evidence in the record supports AJ1's finding that no discriminatory intent existed when, in October 2011, S1 assigned Complainant duties that did not align with her position description. Specifically, in finding that the issue with Complainant's assignment of duties was unrelated to her race and pre-dated S1's supervision, AJ1 relied on AJ2's August 23, 2010, decision in Agency No. HHS-CDC-1415-2008 / Hearing No. 410-2009-00336X and on Complainant's emails dated October 18, 2011 and February 15, 2012. Although Complainant argues the Agency treated her differently than C1, C2, and C3, she did not show that any difference in treatment was based on her race rather than on other factors such as the availability of duties within her position description. Although Complainant argues that the Agency did not comply with its established procedures related to reorganizations and the assignment of duties, we emphasize that this does not compel a finding of discrimination. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," EEOC Notice No. 915.003, at 15-V.A.2 (Apr. 19, 2006) (Compliance Manual) ("An employer's deviation from an applicable personnel policy, or a past practice, can support an inference of a discriminatory motive." [emphasis added]).
Regarding claim 2, the evidence in the record supports AJ1's finding that no discriminatory intent existed when, in June 2012, S1 counseled Complainant. Specifically, in finding that the counseling was unrelated to Complainant's May 2012 protected EEO activity and that Complainant's situation was different from C1's situation, AJ1 relied on Complainant's June 7, 2012, email to S1 and S1's January 23, 2012, email to C1. Although Complainant argues that the Agency treated her differently than C1, we note that AJ1 reasonably determined that her situation was not comparable because her inappropriate conduct directly involved S1 whereas C1's inappropriate conduct did not directly involve S1.
Based on the above, we find that Complainant did not meet her burden of demonstrating that AJ1's factual determinations, including his determination that no discriminatory intent existed, are not supported by substantial evidence.
CONCLUSION
Substantial evidence in the record supports AJ1's decision, after a hearing, that the Agency did not subject Complainant to disparate treatment on the bases of race or reprisal for prior protected EEO activity in connection with her assignment of duties or her counseling. Therefore, 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 action finding no race or reprisal discrimination.
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
__1/4/17________________
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.
2 Complainant filed her June 23, 2014, appeal following her receipt of a May 30, 2014, decision issued by an Equal Employment Opportunity Commission Administrative Judge (AJ1). When the Agency did not issue a final order within 40 days of receipt of AJ1's decision, AJ1's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). Although the appeal was premature at the time of the filing, we find that it is currently ripe for review.
3 AJ1 also found that the Agency did not subject Complainant to disparate treatment on the basis of sex (female). We note that Complainant did not specifically challenge AJ1's finding of no sex discrimination. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, at � IV.A.3 (Aug. 5, 2015). Because Complainant did not specifically challenge AJ1's finding of no sex discrimination, we exercise our discretion not to address that basis on appeal.
4 Complainant objected to the recommended reclassification and no reclassification was processed. Complainant remained a GS-0343-12 Program Analyst.
5 Although Complainant characterized the counseling as a reprimand, the record reflects that S1 did not issue Complainant a letter of reprimand.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142504
2
0120142504