0120160152
02-19-2016
Preston B.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Preston B.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120160152
Agency No. HHSCMS03422015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated September 10, 2015, dismissing his complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Insurance Specialist at the Agency's Centers for Medicare and Medicaid Services facility in Baltimore, Maryland.
On July 10, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when:
1. In January 2014, the Deputy Director (DD) and Director (D), Division of Policy Analysis & Planning, Medicare Drug and Health Plan Contract Administration Group, Center for Medicare, refused to change Complainant's 2013 Performance Management Appraisal Plan rating for the administrative element, which Complainant alleged was rated as "less than superior";
2. Between January and February of 2014, DD published a new Medicare Advantage clinical trial policy without consulting Complainant;
3. On May 20, 2014, DD and D claimed in a meeting that Complainant was not providing them updates relative to his work and that they were unaware of Complainant's work products;
4. On June 9, 2014, DD and D demanded that Complainant meet with them because Complainant was not providing updates relative to his work and that they were unaware of Complainant's work products;
5. On December 11, 2014, DD emailed Complainant's manager (M1) to say that DD did not believe Complainant could have had an MRI and X-ray in one day;
6. In early May 2015, DD delayed by approximately two weeks or more the publication of guidance concerning Cologuard, a colorectal screening benefit for which Complainant was the policy lead;
7. On May 22, 2015, DD emailed Complainant, with a copy to M1 or M22, stating that Complainant had not copied DD on correspondence related to a coverage issue concerning pneumococcal vaccine; and
8. On May 29, 2015, DD told Complainant's new manager (M2) that she had a conflict with the Complainant that needed to be resolved.
The Agency dismissed the claims for untimely EEO Counselor contact and for failure to state a claim. Specifically, the Agency found that claims 1 through 5 should be dismissed for untimely EEO Counselor contact because Complainant did not contact a Counselor until May 29, 2015 and the events occurred more than 45 days prior to that date. The Agency further found that claims 3 through 8 should be dismissed for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court recognized that allegations of harassment and the existence of a hostile work environment involve, by their nature, a series of incidents linked by a pattern of conduct. This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Untimely discrete acts may, however, be used as evidence in support of a timely claim of harassment. Id.
On appeal, Complainant specifies that he does not appeal the dismissal of claim 1. With regard to the remaining claims dismissed for untimely EEO Counselor contact, namely claims 2 through 5, we note that the incidents occurred between January and December 2014 and Complainant did not contact an EEO Counselor until May 29, 2015, which is beyond the 45-day regulatory limit. We further note, however, that these claims constitute non-discrete acts. In its Dismissal, the Agency found that claim 2 was a discrete act, stating "Complainant's allegation[] of discrimination regarding . . . the assignment of his duties ( claim 2) [is] considered [a] discrete act[] and [is] therefore dismissed as untimely." Dismissal, p. 4. Such a characterization of claim 2 is inconsistent with Complainant's allegation that he was not consulted about a trial policy published by the Agency. Instead we find that claim 2 is a non-discrete act, as are claims 3 through 5.
Pursuant to Morgan, an overall claim of harassment is timely if all the acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In the instant case three acts (claims 6, 7 & 8) fall within the filing period. The entire complaint, taken as a whole, should be treated as a claim of harassment. The Agency's argument that claims 6, 7 & 8 cannot be used to make the other claims timely has the effect of fragmenting Complainant's claim and misconstrues our laws and precedent. The Commission has discouraged the practice of fragmenting claims because it prevents the statement of a coherent and integrated claim. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.5 (III) (November 9, 1999).
Failure to State a Claim
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Following a review of the record, we find that, viewing claims 2 through 8 together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged, without more, are simply insufficiently severe or pervasive to state a valid claim.
CONCLUSION
Following a review of the record, we AFFIRM the Dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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
February 19, 2016
__________________
Date
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 It is not clear from the record whether the email was copied to M1 or M2.
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