0120121411
04-23-2014
Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120121411
Hearing No. 410-2011-00202X
Agency No. HHSCDC03552010
DECISION
On January 21, 2012, Complainant filed an appeal from the Agency's November 28, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laboratory Science Technician at the Agency's Office of Infectious Diseases facility in Atlanta, Georgia.
On September 13, 20101, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability2 (Pityriasis rosea and idiopathic guttate hypomelanosis3) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On June 17, 2010, Complainant was terminated from her position with the Agency during her probationary period;
2. On June 14, 2010, Complainant's Supervisor drafted a counseling memorandum that contained false allegations about Complainant's conduct; and
3. On March 9, 2010, Complainant was denied a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 22, 2011, and issued a decision on November 28, 2011. 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 pursuant to 29 C.F.R. � 1614.109(i). Specifically, the AJ found that Complainant was not denied a reasonable accommodation because Complainant did not have a disability and did not request a reasonable accommodation. The AJ further found that Complainant failed to establish a prima facie case of reprisal or disability discrimination because Complainant had not engaged in EEO activity, her supervisor (RMO1: no claimed disability) was not aware of Complainant's disability or EEO activity, and there was no causal connection between Complainant's removal and her EEO activity. The AJ further found that, assuming arguendo that Complainant established a prima facie case of reprisal and/or disability discrimination with regard to claims 1 and 2, the Agency articulated legitimate nondiscriminatory reasons for its actions and Complainant failed to establish that such articulated reasons were mere pretext to cover unlawful discrimination.
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. 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. (November 9, 1999).
With regard to Complainant's claim alleging denial of a reasonable accommodation, we note that under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Complainant alleged that she initially had concerns that her skin condition(s) barred her from taking a smallpox vaccination that was a requirement of her position. Rather than take the vaccination, Complainant asked RMO1 if she could be excused from having to enter or work in the specific building where exposure to the smallpox virus was a risk, but her request was denied. Following a medical consultation with a dermatologist, however, Complainant was cleared to take the smallpox vaccination5, thus eliminating any need for a reasonable accommodation. See Hearing Transcript, pp. 121-2. At the hearing Complainant agreed with the AJ that the requested accommodation was not necessary, see id., p. 122, and when asked by the AJ whether the issue was moot, responded "Yes." Id. We therefore find no discrimination and no basis to disturb the AJ's decision.
With regard to the remaining claims, we note initially that claim 2 fails to state a stand-alone claim. To the extent Complainant is alleging the memorandum amounted to harassment, we find that the alleged action is not severe or pervasive enough to constitute harassment. To the extent Complainant is alleging disparate treatment, the Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Furthermore, under 29 C.F.R. � 1614.107(a)(5) proposed actions fail to state a claim. The record shows that the June 1 Memorandum was a "Recommendation To Terminate" and was therefore a proposed action. The harm incurred by Complainant as a result of the alleged action was her removal from the Agency. As such, claim 2 merged with claim 1, which addresses Complainant's removal.
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 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). At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). Specifically, the June 11, 2010 termination notice stated "Strong concerns have been raised about conduct exhibited by you in your new position and it has been determined that you have not demonstrated an acceptable level of conduct for continued Federal employment," see Report of Investigation (ROI) Exhibit 20,
The burden thus returns to the complainant to demonstrate, by a preponderance of the evidence, that the agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 519. Complainant maintains that the allegations raised in the June 1, 2010 memorandum recommending her termination, which formed the basis for the June 11 termination notice, were false. The June 1 memorandum listed four incidents that led RMO1 to recommend her termination during her probationary period. See ROI, Exhibit 20. The first incident involved an alleged November 2009 altercation between Complainant and the person training her as a new employee (CW1: no claimed disability) that included repeated use of profanity in the workplace. See id. The second incident involved an alleged breach of protocol and safety rules later that same month when Complainant wore a laboratory coat and gloves in an office corridor, outside of the laboratory. See id. The third incident involved another alleged breach of protocol in May 2010 when Complainant became confrontational with other employees. See id. Finally, the fourth incident occurred the very next day and involved a complaint to RMO1 from the Building and Facilities Maintenance Office alleging that Complainant had repeatedly called that office asking them to repair a piece of equipment, again in violation of protocol. See id. RMO1 repeated these allegations during his hearing testimony before the AJ. See Hearing Transcript, pp. 161-71.
With regard to the November 2009 incident with CW1, Complainant does not deny that the incident occurred but she argues that she and CW1 and other coworkers:
had all gotten along just fine and had mutual respect for one another with the exception of the one incident in the month of November 2009. We didn't get a lot of opportunity to see one another throughout the day . . . [b]ut when we did see each other while passing through the hallway and/or sitting in the break room, we would always respectfully greet one another, make conversation and have laughs"
ROI, Exhibit 6, p. 10.
Complainant further argued that on occasion other employees were rude and confrontational with her. She averred that:
I have never alienated myself from my coworkers by using intimidating words or profanity as alleged by [RMO 1] . . .. I have never initiated any negative incidents or acts of disrespecting [sic] any of my former [Agency] or other coworkers but I have had to speak up for myself when I had been rudely and aggressively confronted by [CW1 and others]."
Id., p. 9.
During the hearing, Complainant argued that CW 1 repeatedly changed his version of what happened during the altercation. See Hearing Transcript, p. 92.
With regard to the charge that Complainant violated Agency protocols, she denies violating any protocols but contends that her coworkers "had their own way of performing the job duties, and I was taught several ways to perform the same job duties." ROI Exhibit 6, p. 7. She avers that "I have several emails that support my following of established protocols." Id. Complainant does, however, admit that she did "unintentionally mistakenly" enter an office corridor while wearing a laboratory coat and safety goggles on her head, see ROI, Exhibit 7, p. 3, but maintains that she witnessed other employees also wearing laboratory coats outside of laboratories, including in office corridors. See id., p. 4.
With regard to the third incident, in May 2010, Complainant averred that:
the incident . . . was initiated by [another coworker (CW 2, no claimed disability)]. I went to deliver the monthly biological indicator to her because she was the designated contact person to receive it, and she immediately became very rude and aggressive toward me with her tone and body language. Her behavior was very unprofessional and unexpected. I asked her twice in a firm tone to calm down and talk to me about whatever it was that she was accusing me of doing. Unfortunately I couldn't just walk away from her and exit the door because she had to let me out with her badge.
Id., p. 11.
With regard to the fourth incident the following day, Complainant maintained that her communications with the Building and Facilities Maintenance Office were professional and appropriate. See Hearing Transcript, pp. 114, 116-17. Complainant next argued that in March 2010 she received her evaluation covering the period from her first day with the Agency, in October 2009, to the end of the year, December 31, 2009, and that although some of the incidents used to justify her removal occurred prior to the end of the evaluation period, she received a "fully successful" evaluation and RMO 1 did not discuss any performance issues with her. See Hearing Transcript, pp. 81, 83. Complainant contends that "if there had been an issue with regards to my conduct, which was inappropriate and a concern that would have caused me to be terminated, [RMO 1] had every opportunity to utilize this performance plan to note that and to work with me if there was such an issue. Id., p. 85.
Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination or reprisal occurred. We note that the fact that Complainant subsequently "got[] along just fine" with CW 1 and other coworkers does not negate the fact that a confrontation with CW 1 occurred and profanity was used. The June 1 memorandum recommending her termination listed the incident as one of the reasons justifying the termination, but it did not list Complainant's subsequent relations with CW 1 as a reason. As such, the fact that she subsequently had a cordial working relationship with CW 1 does not show discrimination or reprisal occurred. With regard to her allegation that other employees were confrontational with her, we note that Complainant was a probationary employee while the other employees referred to by Complainant were not. As such, they were not similarly situated with her and any difference in treatment they allegedly received is not probative of discrimination or reprisal against Complainant. With regard to alleged inconsistencies in statements made by CW 1 concerning the nature of the November altercation with Complainant, we note that even assuming arguendo that CW 1 lied outright to RMO 1 about what occurred that day, that does not indicate that RMO 1's recommendation to remove Complainant from the Agency was based on discrimination or reprisal rather than on a misplaced reliance on CW 1's truthfulness.
With regard to Complainant wearing laboratory equipment outside of a laboratory, the fact that Complainant did so inadvertently is irrelevant since she was not charged with deliberately flouting protocol. Finally, we note that Complainant does not deny that she repeatedly called the Building and Facilities Maintenance Office, testifying that the person she called "got tired of me calling in so many autoclave breakdowns, because there was a lot. . . . I guess she got tired of me calling in so many because I never did anything to this -- to the person on the other end." See Hearing Transcript, p. 114. While Complainant believes that her behavior did not warrant termination during her probationary period, she has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its action were pretextual, or otherwise showing that the action was motivated by animus against her disability or in reprisal for protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of showing discrimination occurred or that the AJ's Decision was incorrect. We therefore AFFIRM the Final Order.
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.
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
April 23, 2014
__________________
Date
1 In her Appeal Brief Complainant states that she filed the Formal Complaint on August 24, 2010 but that the original filing "was never found nor acknowledged by the" Agency and she had to resubmit her Formal Complaint. Since the complaint was not dismissed as untimely but was accepted for investigation the actual filing date has no effect on the outcome.
2 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
3 Complainant's skin conditions have been variously described in the record as Pityriasis Rosea, Idiopathic Guttate Hypomelanosis and Acne Vulgaris.
4 The AJ's Decision gives the date as June 10, but in the body of the Decision, as well as in Complainant's Formal Complaint, the date is given as June 1, 2010.
5 Complainant did not take the vaccination because she was removed from the Agency a few days later.
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0120121411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121411