Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Aug 9, 2013

0120121245 (E.E.O.C. Aug. 9, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120121245

Agency No. HHS-SAM-0001-2011

DECISION

Complainant filed an appeal from the Agency’s December 16, 2011 Final Decision concerning
his 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. For the following reasons, the Commission AFFIRMS the Agency’s
Final Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Officer at
the Agency’s Center for Mental Health Services, Substance Abuse and Mental health Services
(SAMHSA) facility in Rockville, Maryland. On January 6, 2011, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of sex (male) and
age (55) when:

1. On September 7, 2010, Complainant's supervisor declined to permit his
telecommuting schedule; and

2. On September 1, 2010, Complainant was terminated from employment prior to
completion of a one-year probationary period of employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
Final Decision pursuant to 29 C.F.R. § 1614.110(b).

0120121245

2
In its Decision, the Agency found that Complainant failed to establish a prima facie case of sex
or age discrimination because he failed to identify any other employees, not in his protected
groups, who were treated better than he was treated under the same or similar circumstances.
The Agency found that Complainant was terminated after he was unable to comply with his
supervisor’s scheduling requirements. Specifically, the Agency observed that when
Complainant was hired by the Agency on February 28, 2010, Complainant traveled to work in
Rockville, Maryland from his home in Pittsburgh, Pennsylvania. Complainant requested that
he be permitted to telecommute for several hours on Monday each week. Complainant further
requested that his scheduled arrival time on Tuesdays be no earlier than 10:00 am.
Complainant also requested that his schedule allow him to leave on Fridays at 3:30 pm.
Complainant’s supervisor, S1, did not agree to this arrangement. S1, the Agency noted, was
unaware that Complainant had requested a formal process for resolving the scheduling conflict.
(Claim (1)). When Complainant would not adhere to the schedule set by S1, S1 issued
Complainant a notice of termination during probation, effective September 10, 2010. The
Agency found that the notice specified that Complainant was unable to meet the scheduling
requirements. (Claim (2)).

Complainant, the Agency found, identified E1, a younger, female employee, who Complainant
claims was permitted to work on a sliding schedule. The Agency considered S1’s statement
that S1 did not supervise E1, that E1 worked outside of S1’s supervisory chain, and S1 had no
input into E1’s schedule. The Agency found that E1 and Complainant were not similarly
situated.

The Agency observed S1’s statement in which she stated that she did not approve
Complainant’s schedule requests because Complainant wanted to telecommute on his day off
(Monday). Complainant’s request to telecommute was denied. Complainant also wanted to
include in his weekly duty hours time spent receiving or returning telephone calls during his
weekly commute while in his car. S1 stated, the Agency further noted, that she would not
approve a schedule that included the accumulation of credit hours and she would not approve
Complainant’s plan to work on his scheduled days off.

The Agency found that Complainant did not show that the Agency’s reasons for its actions
were a pretext for discrimination. The Decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

On appeal, Complainant asserts that E1 is a proper comparator to Complainant. E1,
Complainant states, is the only other physician at the facility and E1 was allowed to work on a
sliding schedule. Complainant states that he worked at least 40 hours per week and frequently
more than 40 hours per week. Additionally, before Complainant’s hire as a federal employee
in February 2010, Complainant had worked for the Agency on a contract basis for four years
with the same schedule he requested after he was hired. Complainant states that he made his
scheduling requirements known before he was hired and that it was only after S1 became his
supervisor that he encountered any problems with the schedule he needed to accommodate his
private practice, family, and commuting needs.
0120121245

3

ANALYSIS AND FINDINGS

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. (November 9, 1999) (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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, we find the record supports the Agency’s Final Decision. We concur with
the Agency that E1 is not similarly situated and that Complainant has not established a prima
facie case of discrimination on any basis. Specifically, Complainant and E1 did not report to
the same supervisor responsible for approving their respective work schedules. We find no
evidence that S1 approved a schedule similar to the schedule proposed by Complainant for any
other employee. We consider that Complainant states he was unable to adhere to the schedule
his supervisor required of him, and no evidence that his sex or age played any role in S1’s
decision to terminate his employment for failure to adhere to the scheduling requirements she
established for him.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision.

0120121245

4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

0120121245

5
RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 9, 2013
Date