Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120111396 (E.E.O.C. Mar. 14, 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
(Food and Drug Administration),
Agency.

Appeal No. 0120111396

Agency No. HHS-FDA-CDRH-022-10

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 30,
2010, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In her complaint, dated March 20, 2010, Complainant alleged discrimination based on sex
(female) when she was subjected to a hostile work environment in that:

(1) On January 14, 2010, she was issued her 2009 calendar year Performance Appraisal
Management System (PMAP) evaluation with a rating of “Minimally Successful;”
and

(2) On November 23, 2009, during a meeting with her supervisor to discuss an
assignment, he became angry, hostile, and intimidating in addition to making
threats. When she left she was very distraught and basically in tears.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to
rebut.

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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”).

After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue,
Complainant was a Compliance Officer, GS-13, in Division of Bioresearch Monitoring,
Program Enforcement Branch. With regard to claim (1), Complainant’s supervisor indicated
that he rated Complainant “Minimally Successful” because she failed to complete or meet
timelines of her work assignment; she walked out of meetings; she had difficulty coordinating
inspections; she had poor communication skills; and she lacked technical knowledge. The
supervisor stated that during the rating period, Complainant had been relieved of a number of
special projects because she failed to do it in a timely manner. Specifically, the supervisor
indicated that on March 24, 2009, a “CI” module special assignment Complainant was
working on was reassigned to someone else because she and her teammate failed to the
assignment within a specified time frame. Complainant does not dispute this. The supervisor
also indicated that during the rating period, Complainant’s work products were poor and they
had to be returned back to her for correction. Specifically, the supervisor stated that on April
27, 2009, Complainant submitted “WL” with numerous typos, missing words, and wrong
exhibit tabs; thus, he gave it back to her. Complainant does not dispute this. The supervisor
indicated that he had many discussions with Complainant about her performance issues during
the rating period but her performance did not improve.

With regard to claim (2), the supervisor indicated that during the relevant time period at issue,
he was discussing Complainant’s specific work assignment which should have taken her only a
couple of days to complete but it had taken her more than a month and it still was not correct.
During the discussion, when Complainant got up to leave, the supervisor warned her not to
leave since the meeting was not over yet. Complainant then told him that he did not give her
adequate directions concerning her work. The supervisor acknowledged that the meeting at
issue was very stressful and he expected, as he told Complainant, more of her as she was a
GS-13 and he should not have to review her work as intensely. There is no evidence that the
supervisor’s purported unprofessional actions during the discussion at issue were motivated by
Complainant’s sex.

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After a review of record, it appears that Complainant and the supervisor did not work well
together. The record indicates that subsequently, on January 22, 2010, Complainant was
voluntarily assigned to another division, the Division of Risk Management Operations, Recall
Branch. The record also indicates that on January 16, 2010, the supervisor was relieved of his
Branch Chief position and was assigned to a non-supervisory Compliance Safety Officer, GS-
14 position. We find that Complainant failed to show that she was treated less favorably than a
similarly situated employee under similar circumstances. Upon review, despite Complainant’s
dissatisfaction with the manner in which her supervisor gave her direction or displeasure with
how he reacted to her work performance, we find that she failed to show that the alleged
harassment was sufficiently severe or pervasive to affect a term and condition of her
employment or that any Agency actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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).
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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

March 14, 2013
Date