Darlena H.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Jun 25, 2020

2019001752 (E.E.O.C. Jun. 25, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlena H.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2019001752 Agency No. HHSNIHNHLBI08216 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 2, 2018, final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Deputy Director for Operations Management and Deputy Chief Information Officer, GS-15, at the Agency’s National Heart, Lung, & Blood Institute (“NHLBI”), Information Technology & Applications Center (“ITAC”) in Washington, D.C. On June 30, 2016, Complainant filed a formal EEO complaint claiming that that the Agency discriminated against her and subjected her to discriminatory harassment based on sex and age (YOB: 1962) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019001752 2 1. On or about October 15, 2015, Complainant was addressed by her supervisor in a hostile, loud and unprofessional tone, and she was chastised for a question asked during an ITAC meeting that occurred the previous day. Also, on or about October 29, 2015, Complainant was addressed in a hostile, loud and unprofessional tone, and appeared upset. 2. On November 4, 2015, Complainant’s supervisor told her she was a “liability to ITAC” and should move on. 3. In December 2015, Complainant’s supervisor did not take action when Complainant informed him of a co-worker’s inappropriate and unprofessional behavior toward her. 4. On December 18, 2015, Complainant was “blindsided” by an email she received from her supervisor stating his displeasure with ITAC’s [Kanban] initiative, a project under her direction, which was copied to the NHBLI Executive Officer. 5. On December 29, 2015, Complainant’s request to attend a weekly meeting to discuss the Storage and Monitoring (StorM) contract was denied by her supervisor. 6. On January 14, 2016, Complainant was issued a Memorandum of Expectations. 7. On February 18, 2016, Complainant’s request to allow her executive coach to attend weekly one-on-one meetings was denied. 8. On March 8, 2016, Complainant was informed by her supervisor that if she did not take the detail at Substance Abuse and Mental Health Services Administration (SAHMSA), her life would become very difficult and that she had no future at the Agency. 9. On March 31, 2016, Complainant was given a Memorandum of Understanding. Complainant also alleged that she was subjected to discriminatory harassment in reprisal for prior protected EEO activity when:2 10. on August 9, 2016, Complainant’s former supervisor provided derogatory input into Complainant’s midyear Performance Management Appraisal Program (PMAP) [evaluation] in the form of a detailed narrative alleging Complainant’s performance deficiencies. 2 The record indicates that Complainant initiated EEO Counselor contact on March 13, 2016, which occurred before the dates at issue for claims 9 and 10. Therefore, the Agency included a discussion of retaliatory harassment for claims 9 and 10. 2019001752 3 After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant timely requested a hearing but subsequently withdrew her hearing request. On October 2, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues, through counsel, that the alleged incidents collectively reflect that the Agency subjected her to discriminatory harassment which led to her removal from her position as Deputy CIO. Complainant further argues that the Agency’s investigation of her claims was incomplete and omitted important witness testimony. Specifically, Complainant indicates that she hired an independent investigator who obtained witness testimony from individuals the Agency investigator did not contact even though Complainant contends that this witness testimony supported her claims. Complainant also argues that the Agency intimidated witnesses who otherwise would have voluntarily testified, and consequently, interfered with the EEO process. Complainant asserts that the Agency deliberately excluded the additional testimony she obtained before the Agency issued the final decision. Finally, Complainant notes that the Agency closed the investigation of her claims without notice. ANALYSIS AND FINDINGS Preliminary Matter - Investigative Record and EEO Interference We address Complainant’s argument that there are deficiencies in the report of investigation (ROI) due to the Agency’s alleged interference with the EEO process. Our review of the record indicates that Complainant submitted additional witness testimony, obtained by a private investigator, indicating that an employee (“E1”) testified that S1 informed him that he was under no obligation to speak with Complainant’s private investigator. E1’s testimony further indicates that he understood that S1 did not want him to communicate with Complainant’s private investigator even though E1 acknowledged that S1 never instructed him not to speak to Complainant’s private investigator. E1 also testified that he heard that management had instructed another employee (“E2”) via email not to speak with Complainant’s private investigator and that employees were only protected (from retaliation) if they spoke with Agency investigators. However, Complainant’s submission on appeal also includes testimony from S1 denying that he told E2 that he would not be protected from retaliation if he spoke to Complainant’s private investigator. S1 acknowledged that he asked E2 whether he spoke to Complainant’s private investigator. Additionally, Complainant does not submit evidence of any Agency email to dispute S1’s testimony. Notably, Complainant includes, on appeal, a copy of an Agency email issued to staff indicating, in pertinent part, that 2019001752 4 Staff are under no obligation to speak to an external investigator or representative of a NHLBI employee unless they are contacted by someone who is authorized by the agency to conduct such an investigation or inquiry. If a staff member chooses to speak to an external investigator or representative of a NHLBI employee, the provision of any information must be in compliance with all relevant federal privacy protections laws, regulations, directive, policies, and guidance. Given the circumstances surrounding this case, we do not find that Complainant’s submission supports that the Agency interfered with the EEO process. Additionally, the record reflects that Complainant was provided a copy of the ROI and Complainant, through counsel, submitted the additional witness statements to the Agency for consideration after the ROI had closed. Although there is no indication that the Agency notified Complainant that it was in receipt of these documents and there is not any acknowledgement in the final decision that the Agency considered these documents, our independent review of the record reveals an adequate investigation was conducted. We also note that Complainant had an opportunity to present her witnesses and other evidence she believed was relevant at a hearing, but instead chose to withdraw her hearing request. Merits of Subject Claims To establish a claim of discriminatory hostile work environment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, age, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record reflects that Complainant did not demonstrate that the Agency subjected her to discriminatory harassment. Rather, the record indicates that the bulk of Complainant’s claims reflect her disagreement with S1’s management decisions regarding assignments and employees. S1 indicated that he served as Complainant’s supervisor from May 2015 until May 2, 2016 when Complainant left ITAC on a detail. 2019001752 5 S1 explained that overall, Complainant had difficulty grasping that the Agency had a “collaborative culture” and that Complainant often used an “authoritative tone” when talking to others. S1 denied that he assigned her unimportant tasks, failed to invite her to important meetings, and failed to give her the information she needed for her job. However, S1 explained that there were instances where he had to curtail certain assignments because Complainant demonstrated a lack of understanding and a propensity to create confusion in her communications with others regarding her assignments. On October 15, 2015, S1 stated that he met with Complainants to address comments he had heard from two employees that Complainant had made during an October 14, 2015 meeting indicating that she was unaware of the proposed Configuration Management Database (“CMDB”), saw no value in the CMBD, and advocated that the Agency drop the CMBD. Because S1 indicated that the CMBD was “critically important,” he explained that he informed Complainant during the October 15, 2015 meeting that she should have discussed her concerns about the CMBD with him first before relaying her position to the staff. S1 denied yelling at Complainant but explained that he was “terse and to the point” and when informed Complainant that her position on the CMBD was “out of synch” with his position. Although Complainant subsequently emailed S1 on October 15, 2015, apologizing for the confusion, S1 indicated that later that month, he was informed by his supervisor (“S2”) that Complainant caused confusion with a presentation “at an important meeting.” S2 testified that Complainant’s presentation was “uncoordinated with other parts of the organization,” and she requested that S1 address these issues with Complainant. Consequently, S1 held a meeting with Complainant on October 29, 2015 to address that Complainant had “deviated from the script,” “offered opinions showing she was ‘off synch’ with management,” and “caused issues by giving an inconsistent message” during the important meeting. On November 4, 2015, S1 explained that he met with Complainant to discuss her October 31, 2015 email to him indicating that she was “not a good fit for ITAC” and that it would be best for her to “consider other options.” S1 further explained that Complainant initiated this discussion, he agreed with her conclusion, and he agreed to help her find a position where she would be a better fit. S1 indicated that he had no recollection of E2 asking Complainant, “are you even an engineer” in December 2015. S1 explained that he was not present when this comment was made. However, S1 attributed E2’s comment to Complainant “based on Complainant sounding very authoritative and not understanding what she was talking about.” S1 explained that E2 informed him that Complainant had been giving technical direction on the StorM contract but “had no idea what she was talking about.” Notably, E2’s supervisor acknowledged that he recalled E2 being “loud, boisterous, and questioning” Complainant during a meeting, but subsequently apologized for his behavior. E2’s supervisor also indicated that Complainant requested that he not penalize E2 for E2’s behavior. 2019001752 6 S1 also clarified that he had previously spoken to Complainant and staff regarding his concerns about the direction and pace of the Kanban initiative before he issued his December 18, 2015 email to Complainant and staff. S2 also concurred that proper placing of projects is “very important.” Specifically, S1 explained that he had learned that Complainant wanted to expand the scope of the contract without an increase in payment, which was not appreciated by the contracting company. As a result, S1 stated that he needed to suspend further changes to the initiative until it could be reviewed which was a “normal activity” taken when concerns are raised about a project. Under the guidance of Employee Relations and S2, S1 explained that he issued Complainant a Memorandum of Expectations on January 14, 2016.3 S1 clarified that he had previously addressed the concerns outlined in the MOE with Complainant and the document was designed to assist Complainant in addressing her deficiencies without placing her on a performance improvement plan. S2 further clarified that the MOE has no negative effect on an employee’s record, it is not placed in the employee’s personnel file, and is a tool used to highlight performance issues when oral counseling has not been effective. However, the Employee Relations Specialist (“ER Specialist”) testified that Complainant raised her voice, was visibly upset, and combative during the January 14, 2016 meeting. Ultimately S1 explained that he had to remove Complainant as COR on the StorM contract on January 14, 2016, “because of all the confusion she had been creating with employees and the contracting company.” S2 also concurred with S1’s decision because Complainant had provided incorrect guidance to the contractor, and her redirection of the contract cost more money and included duties outside of the scope of the contract. S1 further noted that the StorM contract was a “critical” project, he needed to mitigate the risks coming from Complainant, and he had “valid business reasons” to remove her as COR. Nevertheless, S1 allowed Complainant to continue as a program manager on the project to “cushion the blow” of removing her as COR. S1 explained that he intended that Complainant take a “backseat” on the contract, but S1 did not confirm that he denied Complainant’s request to attend weekly meetings on the StorM contract. After her removal from the StorM contract as COR, S1 stated that Complainant requested that her executive coach attend her one-on-one meetings with him. S1 denied rejecting this request and indicated that he asked Complainant to clarify the meeting goals and subjects for discussion during these meetings, but Complainant failed to provide this information. S2 further clarified that executive coaches should only attend meetings where there is a clearly defined reason for their attendance. Similarly, the ER Specialist stated that executive coaches normally are not present during one-on-one meetings between employee and supervisor and only meet with the employee they are coaching. 3 A copy of the MOE reiterates that Complainant was “out of synch” with S1 and the team and that she undermined the Agency’s ability to accomplish its objectives. 2019001752 7 Both the ER Specialist and S1 testified that discussions of Complainant’s detail appointment began considering Complainant’s adverse reaction to receiving the MOE. S1 indicated that there was a detail opportunity available with SAMSHA that could have potentially led to a permanent GS-15 position. S1 stated that he became frustrated, but did not raise his voice, when Complainant initially told him during their March 2016 conversation that she did not want the detail. S1 explained that he had “called in favors” to get the detail, and he believed that the detail would eliminate the toxic environment she had created. However, Complainant sent S1 an email later that day accepting the detail but subsequently sent S2 an email on April 3, 2010 declining the detail. S1 acknowledged that Complainant was given a MOU establishing the terms for her detail to SAMSHA. S1 denied being responsible for the MOU including terms providing that Complainant waive or dismiss any EEO actions. Both S2 and the ER Specialist clarified that the language at issue is a standard clause that Employee Relations includes when employees are offered details outside of NHBLI as career opportunities. S2 distinguished this detail from Complainant’s detail with the Management Office, which was an internal detail and indicated that MOUs are not required for internal details. However, S2 noted that an MOU was prepared for Complainant’s internal detail because Complainant requested one. With respect to Complainant’s PMAP evaluation, S1 explained that Complainant left ITAC on May 2, 2016 on a detail assignment with the Office of Management. S1 further explained that Complainant’s detail supervisor (“Detail Supervisor”) asked for his input on the performance narrative Complainant provided. S1 reviewed Complainant’s narrative and discovered inaccuracies in her narrative. Specifically, S1 noted that he was unaware of some of the tasks Complainant indicated that she had completed, and Complainant failed to indicate that the guidance she received from him to complete tasks that she was assigned. S1 denied that he and the Detail Supervisor were conspiring against Complainant. Moreover, the ER Specialist testified that it was customary practice for a supervisor of a detailed employee to reach out to the employee’s previous supervisor for information in conducting the employee’s mid-year PMAP. Considering all of these allegations, even if true, Complainant has not shown evidence that considerations of her sex or retaliatory animus motivated management’s actions towards Complainant. As previously discussed, the record reflects that S1 had issues with Complainant’s off messaging during presentations, Complainant’s opinion on the CMBD, and Complainant’s decision to expand the StorM contract. Additionally, employees, E2 in particular, questioned Complainant’s ability to effectively perform her duties. These issues resulted in S1 issuing the MOE (a non-disciplinary action), removing Complainant from the StorM contract as COR, and agreeing with Complainant’s conclusion that she was not a good fit at ITAC, which resulted in her detail to the Office of Management. The record further reflects that it was customary for S1 to provide the Detail Supervisor feedback on Complainant’s performance to help evaluate her mid-year PMAP. Lastly, the record supports that standard language was included in Complainant’s MOU for her initial detail assignment to SAMSHA. 2019001752 8 The image which emerges from considering the totality of the record is that there were conflicts and tensions with her supervisor’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or even autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 2019001752 9 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 25, 2020 Date