Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

May 1, 2013

0120120961 (E.E.O.C. May. 1, 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
(Centers for Disease Control and Prevention),
Agency.

Appeal No. 0120120961

Agency No. HHS-CDC-0526-2010

DECISION

Complainant filed an appeal from the Agency’s September 15, 2011 Final Decision 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply
Technician at the Agency’s Centers for Disease Control and Prevention facility in Atlanta,
Georgia. On November 9, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American), sex (female), age,
(63), disability (hearing), and in reprisal for prior protected EEO activity, when:

1. Management denied Complainant’s request for a desk audit; and

2. Complainant’s Performance Management Appraisal Plan (PMAP) still contains
job duties that have been changed or contracted out.

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). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).
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In its Decision, the Agency found that Complainant did not establish a prima facie case of
discrimination based upon her race, sex, age, or disability, because Complainant failed to
identify any employees, not in her protected groups, who were treated better than she was.
The Agency found that Complainant did establish a prima facie case of reprisal discrimination.

The Agency found regarding claim (1) (desk audit) that the responding management officials,
S1 and S2, denied refusing Complainant’s request for a desk audit. Rather, S2 stated that a
desk audit of Complainant’s position was done in August 2010, but he was not aware of the
results of that audit. Both S1 and S2 stated that they did not believe that Complainant’s job
duties had changed and so they were unable to request a desk audit for Complainant, but that
Complainant was instructed to ask for an audit from the Agency’s Human Resources office,
and that is what happened.

Regarding claim (2) (performance standards), the Agency found that both S1 and S2,
Complainant’s supervisors, stated that Complainant’s duties have not been contracted out and
that her performance evaluation standards are accurate.

The Agency observed that Complainant did not provide an affidavit during the investigation of
her complaint. The Agency considered the evidence obtained during the investigation and
found no evidence to support a finding of pretext regarding the explanations provided by S1
and S2 for the Agency’s actions. The Agency found that Complainant did not show that more
likely than not her race, sex, age, or disability motivated S1 or S2 in any respect. Moreover,
the Agency found that while both S1 and S2 were aware of Complainant’s prior EEO activity,
there was no evidence that the Agency’s explanations were a pretext to mask reprisal
discrimination or that reprisal was the real reason.

The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination on any basis as alleged.

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,
0120120961

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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).

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

In the instant case, we assume, without so finding, that Complainant is an individual with a
disability. We concur with the Agency that Complainant did not identify any other employees,
not in her protected groups, who received preferential treatment under the same or similar
circumstances. We consider, as did the Agency, the statement of H1, a Human Resources
Specialist who was unaware of Complainant’s race, sex, age, disability, or prior EEO activity.
H1 reviewed the responses of S1 and S2 to the request H1 sent to Complainant’s supervisors
regarding Complainant’s current job duties and responsibilities. H1 found that Complainant’s
job duties had not changed though she believed that Complainant’s position description needs
to be updated to reflect some automated processes. H1 confirmed that she had not reported the
results of her findings to Complainant, nor to Complainant’s supervisors. We find that the
evidence does not show that Complainant was discriminatorily denied a desk audit (claim (1)).

Regarding claim (2), we consider the statements of S1 and S2 who explain that they supervise
two Supply Technicians and that the other Technician has credit card duties that Complainant
does not have, while Complainant has duties the other Technician does not have. S2 explained
that the Agency employs a contractor who performs the duties for Complainant and the other
Supply Technician when one is absent. We find that Complainant presented no evidence that
her performance standards (or appraisal plan (PMAP)) are inaccurate or that the Agency’s
explanation is a pretext for discrimination. We find Complainant has not shown that more
likely than not she has been subjected to discrimination as alleged in claim (2).
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CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
no discrimination.

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 tends 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
0120120961

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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

May 1, 2013
Date