Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-1267-0500 (E.E.O.C. Jul. 22, 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
(Centers for Medicare and Medicaid Services),
Agency.

Appeal No. 0120121267

Hearing No. 410201100243X

Agency No. HHSCMS05162010

DECISION

On January 20, 2012, Complainant filed an appeal from the Agency’s December 23, 2011,
final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Health Insurance
Specialist at the Agency’s Regional Office in Atlanta, Georgia. On October 22, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of her disability (attention deficit disorder), age (55), and in reprisal for prior protected
EEO activity when:

1. From August 2010, management subjected Complainant to a hostile work
environment when:
a. Beginning in August 2010, management assigned Complainant an excessive
workload;
b. On August 26, 2010, management issued Complainant a counseling memo;
c. On June 17, 2010, and June 22, 2010, management requested Complainant
provide an itemized list of what she would be working on during requested
credit hours;
0120121267

2
d. On August 4, 2010, management accused Complainant of not completing
assignments in a timely manner;
e. On October 12, 2010, management entered Complainant’s cubicle and stood
very close to her in a physically intimidating position;
f. On October 28, 2010, management did not allow Complainant to work from
home;
g. On November 1, 2010, management entered Complainant’s cubicle and
stood very close to her in a physically intimidating manner;
h. On November 4, 2010, management sat very close to Complainant while
discussing a performance issue;
i. On November 23, 2010, management asked Complainant when she planned
on retiring; and
j. On April 15, 2011, management required Complainant to use an Excel
spreadsheet in connection with a work assignment.

2. On January 24, 2011, management issued Complainant a rating of “minimally
successful” and did not allow her to rebut the rating.

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). Complainant timely requested a hearing.
The AJ held a hearing on November 2, 2011, and issued a decision on November 15, 2011.
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. We note that Complainant
has not challenged the framing of the complaint and is not in this appeal pursuing claims that
were dismissed prior to the hearing.

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, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
0120121267

3
(1973). Complainant must initially 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. Furnco Construction 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, non-discriminatory reason for its actions. Texas Department of Community 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 (2000).

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her 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
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994). Whether an environment is hostile or abusive can be
determined only by looking at all the circumstances, which may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance. A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d
1355, 1358 (11th Cir. 1982).

Here, the AJ found Complainant failed to establish a prima facie case of disability or age
discrimination. The AJ further found that Complainant established a prima facie case of
reprisal discrimination but that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. The AJ found Complainant failed to show the actions she allegedly suffered
were sufficiently severe or pervasive to rise to the level of unlawful harassment. After a
careful review of the record, including Complainant’s statement on appeal, we find, assuming
Complainant established a prima facie case for all bases, that there is substantial evidence in
the record to support the AJ’s finding of no discrimination.

As to claim (1), the record supports the AJ’s finding that Complainant failed to present
credible evidence demonstrating any of the allegedly adverse treatment she received was
motivated by any unlawful discrimination or that it was sufficiently severe or pervasive to rise
to the level of unlawful harassment. In incident (a) Complainant claims she was assigned an
excessive workload, yet the record shows she handled about the same number of waivers as
0120121267

4
her co-workers. The record further shows that her workload actually decreased as more
employees were added to the division. In incident (b), Complainant claims her second line
supervisor (S2) issued her a counseling memo for being disrespectful to her first line
supervisor (S1). The record shows the supervisor had a right to issue the counseling memo. In
incident (c), Complainant alleges management required her to provide an itemized list of what
she was working on in order to get credit hours. Yet, the record shows this was required by
the Master Labor Agreement.

Next, in incident (d), Complainant claims S1 accused her of not completing assignments in a
timely manner after two large assignments were left to “sit” for several months. The record
shows Complainant did knowingly leave work unfinished. Complainant alleges in incidents (e),
(g), and (h), that S1 and the Team Lead (T1) stood or sat too physically close to her and that
their actions made her feel physically threatened and unsafe in her job. S1 and T1 stated they
were standing or sitting close to Complainant in order to look at documents with her. S1 stated
that at no time did Complainant inform her that she felt uncomfortable, and T1 stated that
when Complainant told her she needed more personal space, T1 apologized and said she would
give Complainant more space in the future.

In incident (f), Complainant alleges S1 did not allow her to work from home after the power
went out in the office. Yet, the record shows S1 never told her she could not work from home,
but rather stated she would have to check on whether Complainant’s laptop connectivity issues
were a problem. Further, Complainant had regularly worked from home on Fridays up until
that point and worked from home the very next day without incident.

In incident (i), Complainant alleges T1 asked her about when she planned to retire. T1 said she
and Complainant were having a general conversation about the retirement system and that
Complainant even sent her a link about retirement via email later. In incident (j), Complainant
alleges management required her to use an Excel spreadsheet for an assignment. The record
shows that an employee from the Central Office used an Excel spreadsheet to ask questions.
Complainant told S2 that the spreadsheet was very distracting for her and that it aggravated her
disability. S2 tried to make the spreadsheet bigger to help Complainant, but ultimately
management allowed Complainant to continue using the word format as she requested.

As to claim (2), Complainant alleges management discriminated against her when they gave
her a rating of “minimally successful” and that she was not allowed to rebut the rating. The
record shows, however, that S2 could not change the performance evaluation based on rebuttal
evidence and that she had to attach the rebuttal evidence to the performance evaluation, which
she did. Complainant refutes the content of the comments by arguing she was not adequately
trained for her job and was overwhelmed by the workload. These contentions are not supported
by the record, as evidence shows Complainant was provided with numerous training
opportunities, both formal and informal. As such, we find that Complainant failed to show that
the Agency’s articulated reasons for its actions were a pretext for unlawful discrimination.

0120121267

5
CONCLUSION

Therefore, the Agency’s final order finding no discrimination 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).

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.

0120121267

6
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

July 22, 2015
Date