Randee D.,1 Complainant,v.Thomas E. Price, MD., Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 20, 20170120150368-2 (E.E.O.C. Dec. 20, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randee D.,1 Complainant, v. Thomas E. Price, MD., Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 0120150368 Hearing No. 531-2014-00023X Agency No. HHS-FDA-0483-2012 DECISION On October 31, 2014, 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 3, 2014, 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. BACKGROUND Complainant worked as a Team Lead Conflict Prevention and Resolution (TLCPR) Specialist within the CPR Division of the Agency’s Office of Equal Employment Opportunity and Diversity Management (OEEO/DM) in Silver Spring, Maryland. On October 26, 2012, Complainant filed an EEO complaint in which she alleged that the Acting Director (AD) of the OEEO/DM discriminated against her on the bases of race (Caucasian), sex (female), and age (57) when on August 7, 2012, she was denied the opportunity to be compensated for expanded duties while a male co-worker was chosen to perform comparable duties with compensation. 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. 0120150368 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but on November 19, 2013 withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Due to rapid turnover, the OEEO/DM had several acting directors and deputy directors between October 2009 and August 2012, when Complainant initially contacted an EEO counselor. On October 29, 2009, one of those previous Acting Directors (PAD 1) sent an email to members of the CPR Division notifying that she had selected Complainant to fill the GS-14 TLCPR position effective November 9th. Complainant was promoted to GS-14 on November 22, 2009. IR 32, 50, 81. She averred that she was assigned by management to be the AD for the CPR Division on November 9, 2009, and that she acted in that position until October 6, 2010. IR 33. An email dated May 7, 2010, from a subsequent Acting Director (PAD 2) to an individual whose title was not identified stated: As you know, [Complainant] has been acting *** as the CPR Director. However, I recently learned that she is not being compensated at the GS-15 pay level during her tenure in this temporary position. At most agencies in which I have been employed the Acting individual is compensated at the GS grade level for which they are acting. Is this [the Agency’s] policy? Would you kindly check to see if this is the policy and whether we should have been compensating her at the GS-15 level? If this is the policy, I want to correct this matter immediately and compensate her for any back pay that we owe her. It’s very important that we do the right thing. IR 42, 43, 51. The Agency was unable to locate any SF-50s or other documentation that Complainant had served as Acting CPR Director between November 2009 and October 2010. IR 112. But in an email to Complainant dated October 12, 2010, PAD 2 stated that he wanted to thank her for all she did while she served as the Acting CPR Director. IR 56. A third previous Acting Director for the OEEO/DM (PAD 3) averred that she served as Acting Deputy from November 2010 through March 2011 and Acting Director from September 2011 through July 2012, after PAD 2 had left. IR 66. PAD 3 explained that because of staff reductions, several people, including Complainant, had additional duties during her tenure including signing time cards, performing evaluations, and approving leave, which were normally the duties of a supervisor. PAD 3 also stated that due to budget constraints, she was not allowed to compensate anyone for those extra duties. IR 67-68. The AD averred that in July 2012, he was detailed to the Agency as the AD-OEEO/DM, and that his detail ended on February 15, 2013. IR 59. He stated that Complainant was the Team leader for CPR and was a GS-14. IR 60. He further stated that he decided to detail an African- 0120150368 3 American CPR Specialist to organize an external training program, help in the preparation of the Agency’s MD-715 report, and establish a training module for a bullying campaign, and that the Specialist was given a 90-day temporary promotion from GS-13 to GS-14 for the duration of his detail. IR 61-62. He averred that he did not consider Complainant for the detail since she was already a GS-14 and he did not want to burden her with additional duties. IR 62. When asked by the investigator whether he was aware that Complainant had previously served as Acting CPR Division Director and did not receive GS-15 compensation, he replied that he was not around at the time. IR 62. 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 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”). 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Agency management articulated legitimate, nondiscriminatory reasons for its actions. The AD explained that he gave the Specialist a temporary promotion to GS-14 because he needed that 0120150368 4 individual to complete the tasks of organizing external training, preparing the MS-715 report, and creating a training module for an anti-bullying campaign. He further explained that he did not choose Complainant for this task because Complainant already was a GS-14 and he did not want to over-burden her with additional responsibilities. In an attempt to establish pretext, Complainant contends that she was not provided compensation at the GS-15 level for her time serving as the Acting Director of the CPR Division between November 2, 2009 and October 6, 2010, and for supervisory duties performed between November 2010 and March 2011 during PAD 3’s tenure as Acting Deputy. We note, however, that these actions presided the dates when AD was the head of the OEEO/DM in July 2012, nearly two years after Complainant’s service as Acting CPR Division Director had ended and over one year after PAD 3’s tenure as Acting Deputy had ended. Complainant failed to show how the AD’s temporary detail of the Specialist and the compensation at the GS-14 level had any nexus to her situation years prior. Complainant has not provided any documentary or testimonial evidence that contradicts the AD’s explanation or undermines the AD’s veracity. We therefore agree with the Agency that Complainant has not established that she had been subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, 0120150368 5 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 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 December 20, 2017 Date Copy with citationCopy as parenthetical citation