Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-3207-0500 (E.E.O.C. May. 28, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120133207

Agency No. HHS0S00022012

DECISION
On September 4, 2013, Complainant filed an appeal from the Agency’s July 1, 2013 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Legal Assistant
for the Departmental Appeals Board, Medicare Operations Division, Office of the Secretary
which is located in Washington, DC. On January 25, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against her in reprisal for prior protected
EEO activity when: (1) in late September 2010, the Director of the Medical Operations
Division reassigned her from the Civil Remedies Division to the Medicare Operations
Division; (2) in December 2010, the Chief of the Medicare Operations Division called her into
her office and began yelling at her regarding a performance issue; (3) on February 11, 2011,
she was formally reprimanded for neglect of duty in performance; (4) on August 19, 2011, she
received a proposed 60-day suspension via email; and (5) on October 12, 2011, she received a
Notice of Suspension (14 days) effective October 24, 2011, for failure to follow instructions
and neglect of duty in performance.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
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decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to retaliation as alleged.

ANALYSIS AND FINDINGS
The Agency dismissed Claims 1, 3, and 4 on the basis of untimely contact with an EEO
Counselor in accordance with 29 C.F.R § 1614.107(a)(2) and Claim 2 for failure to state a
claim pursuant to 29 C.F.R § l614.107(a)(1). We note that Complainant does not raise any
argument on appeal in opposition to the dismissal of these claims. Because Complainant does
not contest the Agency’s dismissal of these claims on appeal, we AFFIRM their dismissal and
will not address them further in this decision.

With respect to the remaining Claim 5, we affirm the Agency’s finding that Complainant failed
to establish retaliation. Specifically, we note the record is devoid of evidence to establish that
Complainant engaged in prior protected activity. Specifically, the record shows that the first
instance of protected activity occurred when Complainant made initial informal EEO contact
with respect to this pending matter. However, such EEO contact took place on October 14,
2011, which is two days after the suspension decision was made. In addition, management
articulated legitimate, non-retaliatory reasons for issuing the suspension (i.e., Complainant
failed to process mail in a timely manner which resulted in serious delays in the processing of
an appeal request and a response to a Congressional inquiry and was previously reprimanded
for similar performance issues). We also agree with the Agency in concluding that
Complainant failed to present evidence of pretext or retaliatory animus.

CONCLUSION
Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final
decision finding that Complainant failed to meet her burden of proof with respect to the alleged
claims.1

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 We note that Complainant failed to present any arguments on appeal.
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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
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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

Date
May 28, 2015