Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120112904 (E.E.O.C. Mar. 20, 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
(Indian Health Service),
Agency.

Appeal No. 0120112904

Hearing No. 443-2009-00181X

Agency Nos. HHS-IHS-0050-2009, HHS-IHS-0212-2007

DECISION

Complainant filed an appeal from the Agency’s April 14, 2011 Final Order 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant at the Agency’s Quentin Burdick Memorial Healthcare facility in Belcourt, North
Dakota. On December 22, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her in reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964. 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 requested a hearing. By
order dated October 19, 2009, the AJ consolidated Agency case numbers HHS-IHS-0212-2007
and HHS-IHS-0050-2009, and defined the claims of the complaint as follows:

(1) Complainant was subjected to harassment from 2001 through February 2007.

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(2) Complainant was subjected to harassment from September 15, 2008, through October
of 2009, including issues of overtime, assignments, and closer scrutiny.1

The AJ held a hearing on May 12 and 13, 2010, and issued a decision on April 13, 2011. The
AJ found that Complainant was not subjected to harassment in reprisal for her prior protected
activity. The AJ’s Decision provides an in-depth analysis of Complainant’s hostile work
environment claim and describes a number of examples where the AJ found that Complainant
failed to present evidence that more likely than not she was subjected to harassment rather than
simply involved in ordinary workplace disputes, unrelated to any discriminatory motive.

The AJ found that with regard to the moving of Complainant’s office and the alleged failure to
provide the equipment Complainant needed to do her job, Complainant failed to present
evidence that the delay of receipt of equipment she experienced was due to reprisal. The AJ
found the evidence showed that for the first months Complainant was detailed to the Medical
Office her work there did not require the equipment Complainant desired. The AJ found the
evidence supported the Agency’s position that security and the Agency’s need for temporary
billing workers meant the Business Office needed the billing equipment (instead of
Complainant) until Complainant later resumed her billing duties. The AJ found that the
Agency had legitimate reasons for moving Complainant from the Medical Office back to the
Business Office in 2007, and that the Agency and the Union had entered into an agreement for
that move. The AJ noted that Complainant had been removed from her position as the Chief
Union Steward. While Complainant may not have agreed with the decision to move her office,
the AJ did not find that reprisal for protected activity more likely than not motivated the
Agency to move Complainant back into the Business Office.

The AJ considered Complainant’s claim that she was discriminatorily excluded from a meeting
considering her office placement, on November 27, 2006. The AJ determined that the acts
Complainant attributes to the Union representative, U1, including this meeting and an
encounter in the hallway on November 24, 2006, did not rise to the level of harassment. The
AJ found that the Union had legitimate reasons to communicate with Complainant. Again, the
AJ found the stated reasons for moving Complainant’s office were not shown to be pretext, nor
was Complainant subjected to harassment because of the Union’s meeting with management
regarding Complainant’s office location.

The AJ found that on February 1, 2007, Complainant, as well as all of the employees who
performed billing functions (the billers), were placed under the acting direction of S1. The AJ
considered Complainant’s belief that this was an illegal appointment. However, the AJ found
that Complainant presented no evidence to support her opinion and that Complainant was not
the only biller affected by the appointment. Accordingly, the AJ did not find the preponderant
evidence indicated that this appointment was made to harass Complainant. The AJ found that
the Agency was losing money and implemented changes to address the financial issues. Again,

1 The AJ noted that Complainant withdrew all bases of discrimination except reprisal by the
outset of the hearing on Complainant’s complaint.
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the AJ found that the changes implemented by the Agency affected other billers, not just
Complainant.

Similarly, the AJ found Complainant did not demonstrate harassment when she was assigned
by S1, to bill private insurance (rather than Medicaid). The AJ found that S1 and her
supervisor, S2, developed a Plan of Action to achieve collection goals. That plan, the AJ
noted, affected all of the billers, not just Complainant. The AJ determined that the evidence
showed that this decision was not motivated by reprisal, but by the Agency’s desire to improve
the department’s efficiency to meet its financial goals. The AJ found that while Complainant
did not like or approve of the proposed and implemented changes, the Plan was not harassment
aimed at Complainant.

Complainant also complained that S1 created errors in work as part of a plan to retaliate
against Complainant. The AJ found that errors occurred as alleged, but that Complainant did
not prove that more likely than not the errors were purposely created by S1. Rather, the AJ
found that the mistakes Complainant identified were ordinary mistakes made in the course of
S1’s work.

The AJ also considered a series of electronic mail messages that Complainant alleged were
instruments of harassment from S1 aimed at Complainant. The AJ found that these messages
concerned assignment of duties; instructions; problem solving; and status updates. The AJ
found that Complainant frequently interpreted ordinary communication directing her work
from her supervisors as harassment. The AJ found that many of the directives Complainant
termed retaliatory were business decisions to which Complainant as well as other staff
members were subjected and that Complainant was not singled out for different treatment.

The AJ found that S1 did not harass Complainant by giving her work assignments, though
Complainant felt that was what S1 did. The AJ noted that Complainant would question S1’s
directions and that Complainant was confrontational in her response to legitimate work
assignments, instructions, and decisions. The AJ concluded that Complainant objected to
what were actually normal messages and that Complainant was not disciplined even when her
responses to S1 were disrespectful or insubordinate.

Regarding Complainant’s claim that she was denied the same opportunities to work overtime as
other employees, the AJ found that Complainant received more overtime than the other billers
she worked with. Additionally, the AJ found the evidence showed that the Agency’s decisions
to address the financial issues the Agency faced included management of funds for overtime.
The AJ found the Agency reasonably exercised its authority to determine how best to use the
funds available and that Complainant did not show that the Agency’s decisions were motivated
by discrimination.

The AJ also considered Complainant’s claim that a contract Employee Assistant Program
(EAP) employee (E1), had been decertified from the EA program after reports indicated that
he had suggested to EAP patients that they should contact legal counsel or representatives
0120112904

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regarding harassment. The AJ found the evidence showed that it was a contract organization
and not the Agency that decertified E1 and the evidence did not establish that the Agency was
responsible for the decertification.

The AJ found that Complainant also established the necessary nexus by showing the short time
that elapsed between her prior protected EEO activity and the time that authorization for
scheduled training for Complainant was revoked after she attended the training. The AJ found
that Complainant was ultimately reimbursed for the trip expenses (the AJ found that
Complainant traveled without proper authorization), but that reimbursement was substantially
delayed. The AJ found that the delayed trip reimbursement and close scrutiny to which
Complainant had been subjected (while in the break room with a coworker) were incidents that
were not sufficient to rise to the level of harassment.

The AJ concluded that Complainant did not establish that she was subjected to reprisal as
alleged. The Agency subsequently issued a Final Order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her 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 establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable person in the
0120112904

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victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.

, EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
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 find substantial evidence supports the AJ’s Decision. We find, as did
the AJ, that the interplay between Complainant and the Agency officials for whom
Complainant worked over the years was commonly characterized by Complainant,
Complainant’s supervisors, and co-workers as tense and conflicted. The record shows that
Complainant would question and object to ordinary efforts to direct or manage her work. We
do not find that Complainant’s EEO activity (serving as a witness and filing her own
complaints) precipitated the strained work relationships between Complainant and the union
officials, or her immediate, second level, and third level supervisors. We find the evidence of
pretext is insufficient to support Complainant’s claim that the officials were motivated by
reprisal. We note, for example, that the location of Complainant’s office was considered on
numerous occasions from 2003 through 2007, by a variety of management officials and the
union. We do not find the evidence adequate to show that the series of considerations and
reconsiderations of whether to relocate Complainant’s was motivated by reprisal. On the
contrary, we find the evidence shows that Complainant’s desire to continue her billing duties
away from the location of the other employees who performed similar work was considered by
management officials as they arrived at the Agency. All of these managers observed the
unusual office location of Complainant and considered relocating Complainant’s office because
of the unusual arrangement.

We concur with the AJ that Complainant appears on numerous occasions, to have interpreted
ordinary work assignments and communication as harassment, including any notice of change
in her work with which she disagreed. We find the record demonstrates that Complainant
viewed as a threat or criticism of her personal performance those changes proposed by
management to address the Agency’s needs. We find Complainant’s rejection of work
assignments and counterproposals were, however, rarely met with discipline.

We find, as did the AJ, that efforts to manage the Agency’s financial concerns through the
redistribution of work were seen by Complainant as measures that were bound to fail and so
0120112904

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could only have been intended to undermine Complainant’s own production or, even worse, to
create circumstances under which she was likely to be blamed for exacerbating the income
issues the Agency faced. We find the evidence supports the AJ’s conclusions that the
proposals impacted more than just Complainant and that she was not singled out for special
treatment. Nor is there any indication that the delayed reimbursement for training expenses or
increased scrutiny of Complainant at work was motivated by reprisal or rose to the level of a
hostile work environment. We find the evidence supports the AJ’s determination that
Complainant did not show that more likely than not the identified Agency officials were
motivated by reprisal.

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s Final Order 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 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 20, 2013
Date