Kori S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

0120182046 (E.E.O.C. Sep. 13, 2019)

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

Kori S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120182046
Agency No. HHSSAM00032017

DECISION

On May 24, 2018, 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
April 17, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly determined that Complainant was not
subjected to discrimination on the basis of age, national origin,2 and reprisal (EEO activity) when:
(1) on June 16, 2017, she received a reprimand; and (2) on June 16, 2017, she received an
Appropriate Use of Email Memorandum.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management Analyst,
GS-11 at the Agency’s Human Resources Liaison Data Branch (HRLDB), Office of Management,
Technology and Operations (OMTO), Substance Abuse and Mental Health Services
Administration (SAMHSA) in Rockville, Maryland.

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.
2 Complainant did not identify her national origin.
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On August 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of age (51), national origin, and reprisal for engaging in prior protected
EEO activity as set forth above. Among other things, Complainant alleged that her first-line
supervisor, S1, the Supervisory Management Analyst, subjected her to disparate treatment based
on her prior EEO activity because of a complaint she filed against S1 in a pending matter.

Claim 1:

Complainant alleged that she went to S1’s office to ask about the leave policy. She explained that
she had previously requested annual leave for that day but changed her request after S1 stated that
there was not enough coverage at work. She testified that she asked S1 if she or a coworker (C1)
planned on taking leave that day; and that when S1 told her no, she asked why S1 maintained that
there was not enough coverage for the day.

S1 explained that she had a standing policy that, in order for staff to take leave during holiday
periods, she would remain in the office with one other liaison. She indicated that during non-
holiday periods, she required herself and two liaisons to cover the office. She recalled that, in the
days leading up to Memorial Day, several people requested leave for Friday; and that after leave
was approved for several team members, she received two additional leave requests from
Complainant and C1 for that same day. She stated that she responded via email that she could not
approve both requests because there would be insufficient coverage in the office and asked them
to coordinate their leave requests between each other and let her know what they decided. She
asserted that Complainant responded by email, withdrawing her leave request. Therefore, she
approved C1’s leave request.

Complainant alleged that S1 had previously told everyone that two Human Resources (HR)
personnel were required at work but only one was required if S1 was in the office. She added that
she and S1 went back and forth, and at one-point S1 shifted in her seat and rolled her eyes at her.
She stated that she asked S1 why she rolled her eyes, and S1 responded by saying, “Sorry.”

S1 explained that on the Friday at issue, she was working at her computer, facing away from her
office door when Complainant asked to speak with her. She indicated that she was still looking at
her computer when Complainant asked if she or C1 planned to take leave that day and she
responded with a no. She asserted that Complainant then asked why her leave request was denied.
S1 recalled reminding Complainant she had voluntarily withdrawn her request, because she needed
two liaisons in the office, in addition to herself, on holidays. She added that Complainant then
challenged her by stating that she only needed one additional liaison. S1 stated that she responded
by clarifying to Complainant that was only for holiday periods. Complainant, she stated, became
upset and raised her voice.

Complainant asserted that S1 told her she did not roll her eyes at her. She indicated that they
disagreed over this, and Complainant became agitated but did not shout or become combative.
She maintained that she was not being disruptive.

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S1 stated she then adjusted her seat and turned to look at Complainant; and that Complainant then
accused her of rolling her eyes, which S1 asserted was false. She added that Complainant quickly
left her office but returned shortly, pointed at her, and said, “Yes, you did!” S1 stated that
Complainant then walked in and out of her office several times mid-conversation. She stated she
suggested they both speak to Complainant’s second-line supervisor, the Director, Division of
Management Services, (S2) but S2 was not in her office. She recalled that Complainant then went
to her desk. S1 asserted that she told Complainant that she was interested in continuing the
conversation, but Complainant refused.

Complainant affirmed S1’s statement about involving S2. She asserted that S1 later issued her a
Letter of Reprimand for being inappropriate, disrespectful, and disruptive in the office.
Complainant maintained that two coworkers were previously disrespectful to S1 but were not
issued similar letters. She stated that S1 was trying to build a record that Complainant was a
difficult and combative employee ever since she complained of unfair treatment.

S1 asserted that Complainant’s prior EEO activity did not play a role in the Letter of Reprimand.
She explained that she documented the incident with Complainant by sending an email to S2 and
her servicing Labor Relations/Employee Relations (LR/ER) Specialists; and that an LR/ER
Specialist responded by informing her that if S1 had previously counseled Complainant on
inappropriate behavior, a Letter of Reprimand would be appropriate.

She indicated that she had previously counseled Complainant regarding her combative, rude, and
disrespectful behavior in an email about three months earlier. Therefore, she decided to issue a
Letter of Reprimand, and, after further consultations with LR/ER advisors, she issued the Letter to
Complainant.

Complainant alleged that other employees were not disciplined for similar misconduct. She also
identified five of her coworkers as witnesses with information relevant to the incident which led
to her reprimand. One witness, however, denied knowledge of the incident, but the four remaining
witnesses offered either information or opinions. One witness opined that S1 was vindictive by
nature; and that she could have issued the reprimand to Complainant in reprisal because she would
“harm” anyone she did not like. Another concluded that S1 no doubt issued the letter of reprimand
in reprisal without providing a basis for her conclusion.

S2 asserted that she had no involvement in the Letter of Reprimand issued to Complainant; and
that she had no firsthand knowledge of their conversation on the day at issue. She explained that
she did not observe Complainant being inappropriate, disrespectful, or disruptive but she was
aware Complainant had been previously upset with S1 regarding work-related issues, noting that
Complainant occasionally raised her voice when speaking with her. She asserted that she had no
reason to believe Complainant’s prior EEO activity played a role in her being issued the Letter of
Reprimand.

Claim 2:
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Complainant alleged that she twice copied the Acting Administrator, (S3) on emails in which she
addressed harassment and unfair treatment by S1; and that she informed S3 that she believed
leadership ignored S1’s actions.

She asserted that S1 later issued her a memorandum to caution her that she used her email
inappropriately; and that S1 claimed that her emails caused a disruption to Agency operations and
were sent to individuals that did not have a “need to know.” Complainant indicated that S1
portrayed her emails as if they were solely work issues and completely disregarded that she copied
S3 because she saw that leadership would not do anything to address it.

Complainant maintained that S1 used the memorandum as an attempt to keep her from speaking
up; and that they were in retaliation for her EEO activity.

S1 explained that Complainant sent an email to her, copying S3 and the OTMO Director, to express
her disagreement with being required to attend a mandatory training session. She added that
Complainant was issued the memorandum because that was the second time Complainant copied
the head of the Agency on an email, noting that Complainant was previously counseled on the
proper process for EEO complaints and email use. She asserted that Complainant’s prior EEO
activity played no role in the matter.

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. In accordance with Complainant’s requests, 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.

CONTENTIONS ON APPEAL

There were no contentions on appeal.

STANDARD OF REVIEW

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
age, national origin, and reprisal/retaliation; we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. S1 explained that Complainant was issued a Letter of
Reprimand for inappropriate, disrespectful, and disruptive workplace behavior for which she had
previously been counselled; and that the Memorandum of inappropriate email use was issued when
Complainant copied the head of the Agency on an email after previously being counseled on the
proper process for EEO complaints and email use.

In an effort to show pretext, Complainant asserted that other employees were not disciplined for
similar misconduct. However, the evidence shows that one of Complainant’s identified witnesses
had received a verbal warning for raising her voice to S1; and that S1 had issued a Leave
Restriction Memorandum to C1 for misconduct. We find no persuasive evidence of pretext here.
We note in this regard that Complainant’s coworker and witness who had received a verbal
warning from S1 had not been engaged in prior EEO activity. With regard to claim 2, we also find
no persuasive evidence that the Agency attempted to discourage Complainant from engaging in
protected EEO activity. We therefore find that Complainant has failed to demonstrate by a
preponderance of the evidence that discrimination occurred; and that the Agency subjected her to
harassment or a hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD.

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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

September 13, 2019
Date