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

Equal Employment Opportunity Commission

May 15, 2013

0120120970 (E.E.O.C. May. 15, 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. 0120120970

Hearing No. 410-2010-00454X

Agency No. HHS-CDC-0163-2010

DECISION

Complainant filed an appeal from the Agency’s November 10, 2011 Final Order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s Final Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant at
the Agency’s Centers for Disease Control facility in Atlanta, Georgia. On April 1, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Caucasian), sex (male), color (white), and disability (mental) when:

1. On February 12, 2010, Complainant learned that he was not selected for an
acting GS 14 Team Lead Quality Assurance/Quality Control (QA/QC) position;
and

2. On October 29, 2008, Complainant learned that he was not selected for a Staff
Accountant, GS-0510-14 position, announced under vacancy number HHS-
CDC-T1-2008-1040.

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Complainant also alleged discrimination on the basis of reprisal when:

3. On May 12, 2010, Complainant was assigned to produce the Unpaid Invoice
Report (UIR).1

Complainant amended his complaint to include the following two claims based on his
disability:

4. The Agency failed to reasonably accommodate Complainant's disability (injury
to right shoulder, arm and wrist); and

5. Complainant was subjected to harassment on the basis of his physical disability.

By letter dated May 11, 2011, the Agency dismissed claim (2) pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO Counselor contact. The Agency found that Complainant
initiated the EEO process on February 24, 2010, and that the incident described in claim (2)
occurred more than 45 days before Complainant contacted an EEO Counselor. Claim (1) was
accepted for investigation. Claim (3) was amended to Complainant’s complaint and accepted
for investigation on May 30, 2010.

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). Complainant requested a hearing and the AJ held a hearing on
August 31, 2011. The AJ subsequently issued a decision on October 17, 2011.

In his Decision, as a preliminary matter, the AJ stated that Complainant’s motion to amend his
complaint at the outset of the hearing was denied. Complainant sought, the AJ noted, to
amend his complaint to include a claim under the Lilly Ledbetter Act regarding the timeliness
of other non-selection incidents (including the selection identified in claim (2)). The AJ found
Complainant’s motion was untimely and that such a claim would require a finding of
discrimination, which the AJ’s Decision did not find. Additionally, the AJ noted that during
the course of the hearing, neither Complainant nor the Agency presented any evidence
regarding Complainant’s claims insofar as they are based on color. The AJ noted that the
parties instead, confined their arguments to Complainant’s race, and accordingly, the AJ’s
Decision did not address the basis of color.

The AJ found that Complainant suffers from depression and that Complainant states he is a
recovering alcoholic. Regarding claim (1), the AJ found that Complainant applied for the
identified position and was interviewed for the position. The AJ noted that Complainant was
interviewed by S1 and S2 for the position. S1, the AJ found, considered the selectee, E1, to
be a better choice for the position because she had demonstrated leadership by leading another

1 Claim (3) was amended to Complainant’s complaint and is based on reprisal only.
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team for several months. The AJ found that Complainant did not present any evidence that S1
did not believe E1 possessed good leadership skills. S2, the AJ noted, was aware that in 2006,
Complainant had previously been close to being removed from the Agency at one time, that he
had been on probation and on leave restriction. S2, the AJ found, considered Complainant’s
negative work history in her assessment of Complainant’s suitability for the acting position.
The AJ observed the evidence indicated that Complainant appeared for the scheduled interview
wearing jeans and tennis shoes. The AJ found that S1 and S2 considered Complainant too
playful and not serious enough for the leadership position, and that he lacked the interpersonal
skills for the position.

Additionally, the AJ noted that S2 had recently promoted E2, a White male employee, to a GS-
14 position. The AJ concluded that Complainant did not show that his race or sex motivated
S1 and S2 to not select him for the identified position. Further the AJ found that neither S1
nor S2 was aware of Complainant’s mental disabilities at the time of the selection process.
Accordingly, the AJ found that Complainant did not show that he was subjected to
discrimination as alleged in claim (1).

Regarding claim (3), the AJ found the evidence showed that the Unpaid Invoice Report (UIR)
was a report created by M1, the Accounting Branch Chief and Complainant’s former
supervisor. Before being assigned to Complainant to complete each week, the UIR had been
completed by M1, and then later, by a contract accountant. The AJ noted that Complainant
was assigned to the UIR in May 2010, at the suggestion of M2 and S3, and that neither official
was aware of Complainant’s EEO activity regarding the instant complaint. The AJ found that
although Complainant considered the assignment punitive and beneath his grade level, the
assignment was not improper and the UIR had been historically assigned to an accountant to
complete. The AJ found that Complainant did not show that the Agency’s decision to assign
the UIR to Complainant was in reprisal for his EEO activity.

Regarding Complainant’s claim that he was denied a reasonable accommodation when he
reported being injured by the repetitive physical motions required to complete the UIR (claim
(4)), the AJ found that Complainant notified S1 in September 2010, that he felt pain in his right
shoulder, arm and wrist. The AJ found that S1 directed Complainant to the Agency’s process
for ergonomic assessment and that within days, Complainant’s workstation had been assessed.
The AJ found that eight days from the time S1 was told about Complainant’s pains,
Complainant received ergonomic equipment. The AJ found that Complainant was relieved of
completing the report from September 30 through October 17, 2010, and that on October 20,
2010, the Agency’s reasonable accommodation coordinator recommended that Complainant not
be assigned to the UIR.2

The AJ found the evidence showed that Complainant’s injury was
accommodated by the Agency.

2 The AJ noted that while assigned to the UIR, Complainant automated the report’s
completion, making it easier to complete, and that Complainant was recognized for this
achievement in his outstanding year-end evaluation.
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Regarding Complainant’s harassment claim (5), the AJ found that Complainant’s work on the
UIR, while aggravating to Complainant, was neither severe nor pervasive enough to state a
claim of harassment.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

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).

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).

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
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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).

As a preliminary matter, we assume, without so finding, that Complainant is an individual with
a disability. Additionally, we concur with the AJ, that at the time of the hearing, Complainant
abandoned his complaint, insofar as it is based on color.

We concur with the AJ and find the Lilly Ledbetter Fair Pay Act (the Act) is inapplicable to
Complainant’s claim that he was subjected to discrimination when he was not selected for the
identified position in 2008 (claim (2)). We note that the Act applies to claims of
discriminatory compensation, while claim (2) alleges discrimination in the selection process for
the position of Staff Accountant, GS-0510-14. EEOC Regulation 29 C.F.R. § 1614.105(a) (1)
requires that complaints of discrimination be brought to the attention of an EEO Counselor
within 45 days of the effective date of the action. Claim (2) involves a discrete, non-selection
event that occurred more than 45 days prior to Complainant's initial EEO counselor contact in
February 2010, and Complainant has not offered any justification for excusing this untimely
contact. Complainant should have had a reasonable suspicion of discrimination at the time of
the non-selection. Therefore, we find that claim (2) was properly dismissed for untimely EEO
counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).

Regarding claim (1), we find that substantial evidence supports the AJ’s determination that no
discrimination occurred as alleged. We find no dispute that Complainant’s appearance in less
than business casual attire at the time of his interview for the position was properly considered
by S1 and S2, as was his prior disciplinary record. We discern no basis upon which to disturb
the AJ’s determination that S2’s decision not to promote Complainant to a supervisory position
was based upon her assessment of his interpersonal skills. We find the AJ properly found that
Complainant did not show that more likely than not discrimination motivated the Agency’s
actions described in claim (1).

Regarding claim (3), we find the AJ properly found that Complainant did not establish that
more likely than not he was subjected to reprisal when he was assigned to complete the weekly
UIR. We find, as did the AJ, no evidence that the Agency officials who suggested that the
task be assigned to Complainant were aware that Complainant had initiated the EEO process
just weeks before the assignment. We further concur with the AJ that while Complainant may
not have been happy with the assignment, we find Complainant did not show that more likely
than not the assignment was inappropriate for Complainant inasmuch as Complainant’s former
supervisor, M1, was responsible for the same report at one time while serving in a higher
graded position than Complainant occupied at the time of the assignment.

With respect to claim (4), we concur with the AJ that the Agency promptly acted upon
Complainant’s request for an accommodation when Complainant notified his supervisor that he
had suffered an injury on the job. We find no evidence that Complainant’s request for
accommodation was denied or unreasonably delayed and note, as did the AJ, that ultimately,
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the UIR was removed from Complainant’s responsibility. We further concur with the AJ that
Complainant’s assignment to the UIR, alone, or in light of the remaining claims of
Complainant’s complaint, did not rise to the level of harassment.

CONCLUSION

Based on a thorough review of the record, we find that substantial evidence supports the AJ’s
decision and we AFFIRM the Agency’s 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.
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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

May 15, 2013
Date