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

Equal Employment Opportunity Commission

Apr 24, 2019

0120180205 (E.E.O.C. Apr. 24, 2019)

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

Evelyn S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120180205

Agency No. HHS-NIH-OD-184-16

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 16, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. Our review is de novo. 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 Program Analyst,
GS-15, at the Electronic Research Administration in Bethesda, Maryland.

On November 17, 2016, Complainant filed an EEO complaint (subsequently amended) wherein
she claimed that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of age (57) and in reprisal for prior protected EEO activity when:

1. On September 19, 2016, her Supervisor issued her a Memorandum of Counseling
regarding unsatisfactory performance in completing the Electronic Research
Administration’s (ERA) senior-level reporting requirements;

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.
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2. On October 13, 2016, Complainant’s Supervisor sent her an email with the subject line,
“1:1 Recap.” In the email, the Supervisor summarized the topics discussed during a
one-on-one meeting with Complainant;

3. On November 16, 2016, the Supervisor sent Complainant an email with the subject
line, “Calendar invitations.” The Supervisor asked Complainant if there was a reason
why she had not been responding to calendar invitations and noted two specific
calendar invites that had not been responded to by Complainant; and

4. Complainant received a rating of “Achieved Expected Results/Fully Successful” with
a score of 3.2 on her amended performance appraisal for the period of September 19,
2016 – December 31, 2016.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that management subjected her to
discrimination, reprisal, or a hostile work environment as alleged. The Agency assumed arguendo
that Complainant established a prima facie case of discrimination and reprisal and found that
management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
with regard to claim (1), management explained that Complainant was issued the Memorandum
of Counseling because the required ERA submission was not complete, poor communication from
Complainant resulted in a missed deadline, and because of the turmoil the incident caused the
department.

The Supervisor noted that the Office of the Chief Information Officer (OCIO) sent an email to
Complainant and her on August 3, 2016, that presented the deadlines for various submissions for
the Business Year Submission (BY) 2018 OMB 300 process. The Supervisor stated that on
September 1, 2016, she had a one-on-one meeting with Complainant. According to the Supervisor,
she asked Complainant about the OMB 53/300 submission and Complainant did not mention she
had missed the OCIO deadline for the Exhibit 53/5.01 IT Portfolio Summary (ITPS). The
Supervisor explained that during training on the OMB 300 process on September 7, 2016,
conducted by Complainant, she reviewed documents distributed by Complainant and noticed a
deadline that had been missed by Complainant.

The Supervisor asserted that she asked Complainant questions concerning the data on the
documents due to the following: (1) data was not accurate; (2) data had not been vetted by
leadership; and (3) data was inconsistent with other data calls that had already been submitted by
ERA. According to the Supervisor, Complainant responded by stating data had been received
from another Director. The Supervisor reported that the relevant Director informed her that he did
not provide Complainant with any information.
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The Supervisor maintained this revealed several inconsistencies and a concern for meeting
deadlines since another draft was due in eight days. The Supervisor stated that on September 8,
2016, she provided guidance to Complainant by email, and informed her that she had not given
management enough time to provide the information she requested in her September 1, 2016 email.
The Supervisor asserted that Complainant’s response on September 8, 2016, contained incorrect
and untrue information.

The Supervisor explained that the draft 5.01 was due on September 9, 2016. The Supervisor
maintained that Complainant assigned her work to a coworker who was not responsible for it.
According to the Supervisor, Complainant was subsequently absent from work for several
consecutive days and the September 9, 2016 deadline was missed because ERA’s information was
incorrect and incomplete and had not yet been vetted through leadership. The Supervisor noted
that due to Complainant’s absences, she and Complainant’s coworker had to complete the
revisions requested by the Directors.

Complainant’s Second-level Supervisor (S2) stated that Complainant’s email request of September
1, 2016, budgeted only eight days for guidance to be given her on the draft 5.01. S2 corroborated
that Complainant missed the deadline and created more work for other people. S2 explained that
incorrect information submitted by Complainant necessitated that he and Complainant’s
Supervisor work to input the correct numbers. S2 maintained that the issuance of the
Memorandum of Counseling was based on the amount of notice Complainant gave to provide her
with the information she requested in the email of September 1, 2016.

Complainant believed her Supervisor maliciously personally attacked her when she called her a
poor communicator, cited missed deadlines and stated that she caused others to perform extra
work. Complainant provided emails from May 2017, explaining that the inaccuracies referenced
by her Supervisor were acceptable because the numbers were only required to be a best guess. The
Agency reasoned that this cannot support a finding of pretext or discriminatory animus by
management as they desired more accurate numbers for the OMB 300.

With respect to claim (2), the Supervisor explained that she sent recap emails all the time, to both
staff as well as people outside of the Division. The Supervisor explained that she sent the email
to Complainant because she had given Complainant guidance, but several days later Complainant
had not followed the guidance. The Supervisor stated that she had received a complaint concerning
the Portfolio Management Tool (PMT) system data on which the guidance to Complainant was
given.

Complainant pointed out that the Supervisor sent the recap email shortly after receiving
notification that she filed an informal EEO complaint and argued that the email was essentially
another admonishment for actions and events that were falsely represented in the email. The
Agency rejected this contention, noting that the recap email covered the work-related topics during
the one-on-one meeting with Complainant. The Agency reasoned that there was no evidence that
cast doubt on management’s legitimate and nondiscriminatory explanation.

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As for claim (3), the Supervisor stated that she noticed Complainant had not accepted her meeting
invitations for meetings relevant to Complainant’s duties. The Supervisor stated that she informed
Complainant that it was her expectation that Complainant respond to all of her meeting invitations.
The Supervisor maintained that she walked around the office and spoke to others about accepting
her meeting invites. According to the Supervisor, she requested that all her staff share their
calendars so that she would be aware of what their schedules were and would not have to pursue
the matter of whom would be attending her scheduled meetings. Complainant believed her
Supervisor singled her out via the email. Complainant acknowledged, however, that she had not
replied to the meeting invitations and only gave as a reason that she had not gotten that far back in
her emails. The Agency determined that it was clear that the Supervisor was attempting to address
the issue of her staff, including Complainant, not responding to her calendar invites.

With regard to claim (4), the Supervisor stated that Complainant’s PMAP rating was based solely
on Complainant’s performance during the rating period. The Supervisor cited multiple reasons for
Complainant’s rating. For example, Complainant created more work for a coworker and passed
off work related to the OMB 300 process to that coworker. According to the Supervisor,
Complainant made errors in the PMT tool and also let items expire in PMT which lowered the
office’s score on the dashboard which is viewable on a public website. The Supervisor asserted
that she received complaints from the Director of a division concerning Complainant’s request for
information, which was not given with sufficient time to afford an appropriate response. The
Supervisor maintained that Complainant also provided incorrect revisions, including wrong titles
for officers, outdated regulatory and policy weblinks, and wrong dates.

Complainant argued that her Supervisor incorrectly believed she delayed the OMB 300 process.
Complainant maintained that her rating reflected her Supervisor’s misunderstanding and
unfamiliarity with the OMB 300 process. The Agency pointed out that Complainant’s backup on
the OMB 300 contradicted Complainant’s claim that she performed every aspect of the OMB 300
process. The Agency noted that the backup stated that while working on the report with the
Supervisor, she had to address some issues with data because numbers were incorrect. The Agency
determined that there was no evidence of unlawful motivation by management in Complainant’s
performance rating.

The Agency concluded that Complainant failed to show that the alleged incidents were based on
discriminatory or retaliatory animus. In addition, the Agency found that the alleged conduct was
insufficiently severe or pervasive as to rise to the level of a hostile work environment. As a result,
the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the managers colluded to justify actions taken against her
which were intended to malign her character and destroy her professional integrity, resulting in
her forced resignation. Complainant maintains that her Supervisor viewed her skill set as a threat
to her authority.
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With regard to claim (1), Complainant argues that she has been responsible for the past 12 years
for the submission of reports related to the CPIC/OMB/300 process and had performed the task
with no issues and a notable level of autonomy and independence. With regard to claim (2),
Complainant argued that the recap email reflected an effort to build a progressive discipline case
against her after the issuance of the Memorandum of Counseling. As for claim (3), Complainant
contended that the email concerning her not accepting her Supervisor’s email invites was also
harassment as it was threatening and intimidating. Complainant claims that she provided her
Supervisor with proof that these meeting invitations were accepted in a timely manner, and that
she attended each of the meetings. In terms of claim (4), Complainant argued that her Supervisor’s
evaluation was subjective, contrived and based on a draft document and fraudulent accusations.
Complainant contends that her rating was reduced in several elements without justification.
Complainant challenges her Supervisor’s negative description of her work product, noting that at
no other time was her work described in such a manner, and that her work product has never had
a deleterious impact on the ERA Program. Accordingly, Complainant requests that the
Commission reverse the final agency decision.

ANALYSIS AND FINDINGS

Hostile Work Environment

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).

Therefore, to prove her harassment claim, 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 her prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Here, Complainant
asserted that based on her protected classes, management officials subjected her to a hostile work
environment. Complainant alleged several incidents of what she believed to be discriminatory and
retaliatory harassment. The Commission finds that Complainant has not shown that she was
subjected to conduct sufficiently severe or pervasive to create a hostile work environment.
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Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a
hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. With regard to claim (1), the Agency explained that
Complainant was issued the Memorandum of Counseling because the required ERA submission
was not complete, poor communication from Complainant resulted in the missed deadline, and
because of the turmoil the incident caused the department. In terms of claim (2), the Supervisor
explained that she sent the email to Complainant because she had given Complainant guidance,
but several days later Complainant had not followed the guidance. The Supervisor stated that she
had received a complaint concerning the PMT system data on which the guidance to Complainant
was given. Similarly, as for claim (3), according to the Supervisor, she requested that all her staff
share their calendars so that she would be aware of what their schedules were and would not have
to pursue the matter of who would be attending her scheduled meetings.

With respect to claim (4)2, the Supervisor stated that Complainant’s PMAP was based on her
assessment of Complainant’s performance. The Supervisor stated that Complainant created more
work for her backup and passed off work related to the OMB 300 process to that backup. Further,
Complainant made errors in the PMT tool and also let items expire in PMT which lowered the
office’s score on the dashboard which is viewable on a public website. The Supervisor asserted
that she received complaints from the Director of a division concerning Complainant’s request for
information, which was not given with sufficient time to afford an appropriate response. The
Supervisor maintained that Complainant also provided incorrect revisions, including wrong titles
for officers, outdated regulatory and policy weblinks, and wrong dates. Thus, she was rated as
“Fully Successful.”

After reviewing the record and considering the arguments on appeal, the Commission finds that
Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. Furthermore, to the extent that Complainant is alleging disparate treatment with
respect to her claims, the Commission finds that she has not shown that the Agency’s reasons for
its actions were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission
finds that Complainant has not established that she was subjected to discrimination, reprisal, or a
hostile work environment as to all claims alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

2 We note that Complainant argues on appeal that the Agency did not address her claim of reprisal
regarding claim (4). It appears that Complainant is responding to a portion of the analysis that
mentions the basis of sex rather than reprisal. A full reading of the analysis, however, makes it
clear that the reprisal basis was considered by the Agency.
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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. 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.
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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

April 24, 2019
Date