0120083301
04-29-2010
Jacqueline V. Russell, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Medicare and Medicaid Services) Agency.
Jacqueline V. Russell,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Medicare and Medicaid Services)
Agency.
Appeal No. 0120083301
Agency No. HHS-CMS-0460-2007
DECISION
On July 21, 2008, complainant filed an appeal from the agency's June 17,
2008 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly found that complainant
had not been discriminated against based on her race, color, sex and age.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Freedom of Information Specialist, GS-12, at the agency's Centers
for Medicare & Medicaid Services facility in Baltimore, Maryland.
On November 5, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
color (Black), sex (female), and age (51) and subjected to a hostile
work environment when:
1. on September 5, 2007, her immediate supervisor (MAN-1) placed her on
annual and sick leave restriction;
2. on September 4, 2007, September 17, 2007 and October 30, 2007, she
received e-mails entitled "Professional Operating Environment;"
3. on September 28, 2007, MAN-1 issued her an official reprimand for
disrupting co-workers through non-work related gatherings in and around
cubicles, and conducting loud, disruptive discussions; and
4. on October 4, 2007, MAN-1 was unsupportive when she advised him that
a co-worker made derogatory comments.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC 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 decision on June 17, 2008,
pursuant to 29 C.F.R. � 1614.110(b).1 The final agency decision (FAD)
concluded that complainant failed to prove that she was subjected to
discrimination as alleged.
In its FAD the agency first found with respect to issue 1 that
complainant had established a prima facie case of discrimination on
all bases because she was a member of the protected classes, she was
subjected to an adverse action and she was the only employee in her work
group placed on leave restriction. The agency found that management
had articulated a legitimate, nondiscriminatory reason for its actions
in that complainant had a history of unscheduled absences, and over
the preceding seven-month period, she had been absent on 52 occasions,
totaling 72.5 hours of sick leave and 146.75 hours of annual leave.
It also noted that this was not the first time she had been disciplined
regarding her leave usage. MAN-1 cleared the leave restriction with the
Human Resources department before its issuance. The agency concluded that
complainant had not shown those reasons to be pretext for discrimination.
With respect to issue 2, the agency found that complainant had not
established a prima facie case of discrimination because she had not shown
that similarly situated persons, not of her protected classes, had been
treated differently or more favorably. MAN-1 stated that everyone in the
work group (a total of 12 individuals) received the e-mails regarding
"Professional Operating Environment." MAN-1 sent the e-mails on the
advice of the Human Resources Department, as a response to a grievance
filed by a co-worker asserting that a "disruptive work environment"
existed in the workplace. MAN-1 stated that multiple e-mails were sent
on the same topic when the issue was not cured after the first message
was sent and he continued to get complaints. The agency concluded that
complainant had not shown those reasons to be pretext for discrimination.
Regarding issue 3, the agency found that complainant had established
a prima facie case because she had shown that only members of her
protected classes had received an official reprimand for loud, disruptive
behavior but not the white employees who she claimed were just as loud
and disruptive. In response, management articulated its legitimate,
nondiscriminatory reasons for issuing the reprimand, namely that MAN-1
had received a complaint from a second co-worker of complainant's that
the behavior of certain staff members was disruptive to the work of
others, and that this tended to occur when MAN-1 was out of the office.
MAN-1 worked with Human Resources on how to best address the problem.
MAN-1 stated that no one had complained to him about any of the white
employees being disruptive (and he noted that the employees who complained
were both members of complainant's protected classes of race, color
and sex). The agency found that complainant had not shown its reasons
to be pretext for discrimination.
Finally, as to issue 4, the agency found that complainant had not shown
a prima facie case of discrimination on any basis as she had not shown
that MAN-1's "unsupportive" behavior was an adverse action, or how she
was treated differently than other employees not of her classes. As its
legitimate, nondiscriminatory reasons, the agency noted that MAN-1 had
responded to complainant's e-mail, which complained that a co-worker
was making derogatory comments about her, by asking complainant for
specific information about what was said, to whom and when the remarks
were made so that he could address her concerns. MAN-1 claimed that
complainant had refused to give him that information. Since she refused
to cooperate, MAN-1 was then unable to address the concerns. The agency
concluded that complainant had not shown these reasons to be pretext
for discrimination.
The agency further concluded that complainant had not shown that the
agency's actions were taken due to her protected classes, and that she
had not shown that those actions were sufficiently severe or pervasive
such that a hostile work environment existed. Complainant appealed the
findings of the FAD.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions in support of her appeal.
The agency did not submit any argument in opposition to her appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
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, nondiscriminatory 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that complainant has not shown that she was discriminated against
as alleged. Our independent review of the record shows that the agency's
legitimate, nondiscriminatory reasons were supported by the evidence
adduced in the report of investigation. Complainant did not submit any
argument on appeal, and so has not shown how the agency's reasons may
be pretext for discrimination. Finally, to the extent that complainant
also alleged that she was subjected to a hostile work environment, we
find, under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), that complainant's claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). A finding of a hostile work
environment is precluded based on our determination that complainant
failed to establish that any of the actions taken by the agency were
motivated by discriminatory animus. See Oakley v. United States Postal
Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record, we AFFIRM the agency's final
decision finding that complainant was not discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
______4/29/10____________
Date
1 Following the issuance of the final agency decision, complainant
attempted to request a hearing on July 10, 2008. The AJ assigned to the
matter issued an Order of Dismissal with Prejudice on August 26, 2008,
which the agency "implemented" in a second FAD issued on September 25,
2008. However, we find that, as the agency had already issued a FAD on
the merits of the case, and complainant had filed her appeal of the June
17, 2008 FAD on July 21, 2008, the AJ's dismissal merely served to dismiss
the hearing request, and the agency's second FAD was merely superfluous.
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0120083301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083301