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

Equal Employment Opportunity Commission

Jul 16, 2015

01-2015-1073-0500 (E.E.O.C. Jul. 16, 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. 0120151073

Agency No. HHSCMS01052014

On January 29, 2015, Complainant filed an appeal from the Agency’s December 5, 2014 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.
DECISION
At the time of events giving rise to this complaint, Complainant was a Health Insurance
Specialist at the Agency’s Center for Medicare & Medicaid Services in Atlanta, Georgia.
Complainant's first-line supervisor was the Deputy Director (S1) and her second-line
supervisor was the Director (S2). Both supervisors were stationed at the Central Office in
Woodlawn, Maryland.
BACKGROUND
On May 5, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (black), and in
reprisal for prior protected EEO activity. The Agency accepted the following claims for
investigation:
1. Complainant was discriminated against when she was notified that she was not
selected for a merit promotion;
2. Complainant was discriminated against when she received a Performance
Management Appraisal Plan for the 2014 period that limited her ability to gain
additional skills and increase her exposure; and
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3. Complainant was denied the opportunity to attend four training courses.
At the conclusion of the investigation of the accepted claims, the Agency provided
Complainant with a copy of the report of investigation (ROI) and notice of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge.1
Complainant requested a hearing but later withdrew her request. The Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.
To prevail in a disparate treatment claim such as this, Complainant must generally establish a
prima facie case by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
ANALYSIS AND FINDINGS
Furnco Constr. Co. v.
Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the
Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty.
Affairs v. Burdine

, 450 U.S. 248, 256 (1981).
Claim #1: Nonselection
Complainant applied for a merit promotion to the position of Health Insurance Specialist, GS-
0107-13, at the Woodlawn, Maryland facility. On December 12, 2013, Human Resources
created a “best qualified list,” certifying six eligible candidates, including Complainant. Two
supervisors interviewed all six candidates on December 19, 2013, and completed the
evaluations on January 3, 2014. On January 13, 2014, Complainant was notified that she was
not selected. Ultimately, two White males already stationed at Woodlawn were promoted.
Though the vacancy posting stated that many positions were available, the hiring parties
concluded that only the two selected candidates possessed all the necessary skills for
promotion.
The Agency conducted in-person interviews for each candidate, except Complainant, who was
interviewed by telephone due to her remote location. The candidates were asked identical
questions, given the same amount of time to answer, and evaluated on the same criteria (ROI
Exs. F; G). Complainant was ranked third among the candidates with 131 points out of a
possible 160, while the two selected candidates earned 157 and 150 (Ex. G). S2 described the

1 The Agency dismissed two additional claims. Since Complainant does not contest this
dismissal on appeal, we will not review it.
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interview of Complainant as difficult: “We wanted more real-life situations or scenarios in
order to see how she handles issues. We could not get any detailed information out of her.”
(Ex. F). The Agency further explained that S1 and S2 were dissatisfied with Complainant’s
experience in the areas of IT, charge process, tech/ops, and application. Thus, the Agency
articulated a legitimate reason for the decision not to select Complainant, i.e.
Because the Agency proffered a legitimate, nondiscriminatory reason for the alleged
discriminatory event, Complainant bears the burden of establishing that the agency’s stated
reason is merely a pretext for discrimination. By way of rebuttal Complainant raised several
points: that S1 mentioned her concern that Complainant would need to relocate if selected, that
Complainant’s recollection of the interview differed from that of S1 and S2, and that the
Agency originally intended to promote more than two employees because the job posting
referred to “many” open positions. None of these arguments refutes the Agency’s proffered
reason.
, the selected
candidates’ had significantly stronger skill sets as evidenced by their backgrounds and
interview performance.
Claim #2: Performance Management Appraisal Plan
A Performance Management Appraisal Plan (“PMAP”) is a statement of the performance
expectations for the employee in the upcoming year. Complainant alleged that her
opportunities and visibility were limited because her 2014 PMAP offered “improved skills and
knowledge and not new knowledge.” (Ex. F). The Agency’s articulated reason for the terms
of Complainant’s PMAP is legitimate and non-discriminatory: the performance elements that
Complainant received were standard for her position and reflected her expertise. Complainant
stated that two White males had better PMAPs but did not elaborate on why the Agency’s
articulated reason for her 2014 PMAP standards was unworthy of credence. Thus, we find no
unlawful discrimination in the 2014 PMAP.
Claim #3: Denial of Training Opportunities
Complainant alleged discriminatory denial of training on four occasions in early 2014. The
Agency explains that she did not receive the training either because she did not request to
attend the training in question or because funds were not available for Complainant to travel to
the training site. These are legitimate nondiscriminatory reasons for the Agency’s action.
Complainant’s statement supports rather than refutes the Agency’s non-discriminatory reason
for the denial, “My remote location limits me from taking advantage of training opportunities,
which other employees are provided, as they are located in Central Office, and I am physically
located in the Atlanta Regional Office” (Ex. F). Further, Complainant stated that she received
invitations to all trainings, the four trainings in question were optional, all required trainings
are offered to off-site workers as webinars (Ex. F) and she attended 14 trainings in between
January and May of 2014 (Ex. G). Complainant has therefore not shown by a preponderance
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of the evidence that any denial of these optional trainings was a pretext for discrimination on
the basis of race, color, sex, or reprisal.
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.
CONCLUSION

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
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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

Date
July 16, 2015