U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myesha F.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 2019001258
Agency No. HHS-HRSA-0447-2017
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15,
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., 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Support Officer/Management
Analyst, GS-12, at the Agency’s Bureau of Health Workforce in Washington, D.C.
On January 19, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency subjected her to discrimination and a hostile work environment based on race (black),
sex (female), religion (Baptist), disability, age (YOB: 1961), and in reprisal for prior protected
EEO activity 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.
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1. On August 17, 2017, Complainant’s supervisor (“S1”) threatened and charged
Complainant with Absence Without Official Leave (AWOL). Complainant
claimed that she had been improperly charged AWOL on numerous occasions
throughout the months of August and September 2017.
2. On August 17, 2017, a letter of reprimand was placed in Complainant’s electronic
personnel folder. However, the letter of reprimand was dated May 2017.
Complainant further stated that the letter included incorrect directions indicating
that Complainant had to report to her second line supervisor (“S2”) instead of to
S1.
3. From September 2017, through October 2017, S1 sent Complainant
correspondence indicating the following matters:
a. Complainant had a negative Mid-Year 2017, Performance and Management
Appraisal (PMAP);
b. Complainant was being placed on a Performance Improvement Plan (PIP);
c. Complainant received a counseling memorandum; and
d. Complainant’s telework was canceled.
4. On October 4, 2017, S1 issued Complainant a memorandum proposing a five-day
suspension.
After the investigation of the 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
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
requested an Agency final decision.
On October 15, 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 requests an opportunity to have a hearing
before an AJ.
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ANALYSIS AND FINDINGS
Preliminary Matter: Complainant’s Appellate Request for a Hearing
We address Complainant’s request, on appeal, for a hearing before an EEOC AJ. The record
supports that on July 23, 2018 Complainant waived her right to an AJ hearing and requested that
the Agency issue a final decision based on the existing record. Complainant may not, on appeal,
request an AJ hearing. Therefore, we deny Complainant’s request for a hearing.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant stated that she was diagnosed with angioedema allergic reactions (swelling beneath
the skin’s surface typically caused by an allergic reaction to food or medicine) in 2015. She
claimed that the construction being performed on the building she worked in could result in an
allergic reaction. Complainant stated that she uses asthma medications, epi-pen, and aspirin to
treat angioedema. Complainant was also involved in a car accident on July 27, 2017, and
sustained injuries for which she was treated with laser therapy.2
2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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Complainant also alleged that between 2015 and January 2018, she filed four EEO complaints,
including the one at issue, that named a number of responsible Agency officials, including S1.
Complainant’s first line supervisor (“S1”) (Black female, Christian, born 1983) stated she was
Complainant’s supervisor throughout the relevant period. She was aware of Complainant’s race,
gender and age, but not her religion. She also stated that she was aware of her prior EEO
activity.
Assuming Complainant established a prima facie inference of discrimination on the bases
alleged, we find that Agency management articulated legitimate, nondiscriminatory reasons for
its actions.
Complainant alleges, and the record indicates, that Complainant was charged with being AWOL
on approximately ten occasions during the month of August 2017, sometimes for full days and
sometimes for parts of days (often due to tardiness in arrival). On August 17, 2017, S1 placed a
Letter of Reprimand in Complainant’s electronic personnel folder concerning her asserted failure
to follow prior guidance concerning her attendance.
S1 claimed that since January 2017 Complainant requested sporadic leave almost every pay
period and usually without notice. She also noted that Complainant had a low leave balance.
She said she notified Complainant that this was unacceptable as she could not depend on
Complainant to be consistently available to complete her duties and serve customers. She told
Complainant she expected immediate improvement.
S1 stated that on June 29, 2017, she issued Complainant a Memorandum of Counseling for her
continued failure to follow Agency procedures regarding time and attendance and use of leave.
However, S1 stated that little improvement resulted. S1 stated that on August 2, 2017
Complainant left the office 2.5 hours early even though S1 had not approved the leave request
Complainant submitted that day. S1 explained that beginning on August 3, 2017, she required
that Complainant sign in and out each day. Complainant, however, failed to sign out on August
8, 2017. S1 noted that in addition to the continued tardiness and excessive absences,
Complainant would take leave without advanced approved, often by leaving early, in violation of
Agency policy. S1 stated that she started charging Complainant with being AWOL and, on
August 17, 2017, she issued her a written reprimand for failure to follow the guidance in the May
2017 counseling memo.
Regarding claim 3(a), the record supports that Complainant had a mid-progress review on June
28, 2017. S1 stated that Complainant received a mid-year 2017 PMAP rating of 1.6, indicating
unsatisfactory work performance. S1 stated that Complainant was not meeting the critical
performance expectations provided to her at the beginning of the year.
Regarding claim 3(b), S1 stated that she placed Complainant on a PIP on September 14, 2017,
because Complainant’s performance was unacceptable in one or more critical elements.
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S1 issued Complainant a letter notifying Complainant that her “performance is currently at the
‘Unsatisfactory Results/Level 1’” and placed Complainant on a PIP for 60 days. The letter stated
that Complainant’s performance in two critical elements, customer service and program support,
is “unacceptable.” The letter further states that the purpose of the PIP is to “provide
[Complainant] a reasonable opportunity to improve and demonstrate ‘Partially Achieved
(PA)/Level 2’ levels of performance” in the two critical elements at issue.
The NTEU CBA article 3 section 5 specifies that if an employee’s performance is determined to
be unacceptable in one or more critical job elements, the employer will notify the employee of
the unacceptable critical elements and place the employee on a PIP for the opportunity to
improve.
Regarding claim 3(c), S1 stated that she issued Complainant a counseling memorandum on June
29, 2017 (already discussed above), because Complainant had a pattern of requesting “sporadic
leave” in almost every period without sufficient notice, leaving the work place early before S1
could approve Complainant’s leave request submitted minutes before her departure, arriving to
work after 9:30 am, and beginning telework after 9:30 am. S1 stated that a counseling
memorandum informed Complainant that she was to report to duty no later than 9:30 am,
tardiness reported after 9:30 am would be recorded as AWOL, and that frequent unscheduled
absences are not acceptable and are grounds for discipline.
A copy of the June 29, 2017 counseling memorandum addresses S1’s concerns regarding
Complainant’s attendance and leave, Complainant’s failure to follow leave request and leave
submission procedures, Complainant’s inappropriate conduct, and Complainant’s failure to
perform work as assigned. The memorandum indicates that Complainant has requested
“sporadic leave” in almost every pay period since January 2017. The memorandum makes
reference to specific dates in April 27, May 2017, and June 2017, where Complainant failed to
request leave in advance and would leave work after requesting leave, minutes before her
departure, without supervisory approval to do so. The memorandum indicates that these actions
“cause[d] confusion” and made it difficult for S1 to manage work, customer, and office
coverage. The memorandum further indicates that Complainant was “resistant” to S1’s
“guidance and expectations” regarding entering leave into ITAS and failed to follow these
instructions on various dates in March 2017 and April 2017. The memorandum also addresses
several instances where Complainant failed to complete assignments by deadline, failed to
properly manager her portfolios, failed to exhibit independent action which caused delays in
work and customer service, failed to follow S1’s instructions, and delayed following up on
participant requests. The memorandum explains that these deficiencies “may adversely impact
[Complainant’s] performance evaluation.
Finally, the memorandum outlines S1’s expectations for Complainant which included (1)
arriving to work no later than 9:30 am; (2) working a full-time schedule; (3) requesting annual
leave or LWOP in advance; and (4) following performance expectations and standards in
[Complainant’s] PMAP.
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Regarding claim 3(d), S1 stated that Complainant’s telework agreement was cancelled because
Complainant received a reprimand. A Labor and Employee Relations Specialist testified that
pursuant to the NTEU CBA article 26, Complainant was no longer eligible to telework once S1
issued the letter of reprimand.
The NTEU Article 26 section 4D identifies the criteria an employee must meet in order to be
considered eligible to participate in the telework program. In pertinent part, an employee is
deemed eligible to telework if the employee is not a on a PIP and has not received any
disciplinary or adverse action which has a nexus to the integrity of the telework program within
the last six (6) months.
Finally, regarding claim 4, S1 testified that she issued Complainant a proposed 5-day suspension
on October 4, 2017, because Complainant failed to follow instructions and was AWOL despite
receiving a counseling memorandum on June 29, 2017 and a letter of reprimand on August 17,
2017.
The record indicates that on October 4, 2017, S1 issued a proposed notice to suspend
Complaisant for 5 days for failure to follow instructions and AWOL. The notice explained that
Complainant’s attendance and ability to follow leave request instructions had not improved after
receiving a June 29, 2017 counseling memorandum and an August 17, 2017 letter of reprimand.
The notice cites several dates in August 2017 and September 2017, where Complainant reported
to work after 9:30 am and failed to follow S1’s instructions for requesting leave. As a result, the
notice indicates that Complainant incurred a total of 10.25 of AWOL hours during this period.
Subsequently, on October 25, 2017, Complainant’s second line supervisor (“S2”) issued a
Decision on Proposed Suspension supporting S1’s proposal to suspend Complainant for 5 days.
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her race,
sex, religion, disability, age, and reprisal for prior protected EEO activity.
The counseling memorandum, letter of reprimand, and the decision on proposed suspension all
indicate that Complainant’s use of unscheduled sick leave, annual leave, and leave without pay
were at issue. The record further supports that S1 advised Complainant on August 9, 2017, that
she might be eligible to use Family and Medical Leave Act (FMLA) leave and emphasized that
Complainant had to notify S1 if she chose to invoke her right to use FMLA. The record further
supports that the Labor and Employee Relations Specialist emailed Complainant on August 28,
2017 and informed her that human resources received her FMLA request on August 11, 2017,
and Complainant had been approved under FMLA to use 40 hours of leave without pay.
However, Complainant has not provided any documentation to support that the leave she
requested and/or took during the period at issue was related to her approved FMLA leave.
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Hostile Work Environment
To establish a claim of discriminatory hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, 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 protected basis – in this case, her race,
sex, religion, disability, 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. Here, as discussed above, Complainant simply has provided inadequate evidence
to support her claim that her treatment was the result of her race, sex, religion, disability, age,
and reprisal for prior protected EEO activity. We conclude that a case of harassment is
precluded based on our finding 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).
Accordingly, 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
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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.
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.
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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 4, 2019
Date
