[Redacted], Isaura A., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021003416 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isaura A.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021003416 Agency No. HHS-FDAORANE-064-20 DECISION On May 26, 2021, Complainant filed a premature appeal2 with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency’s August 23, 2021, 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. BACKGROUND Beginning on March 4, 2018, Complainant worked as a GS-0301-13 Supervisory Administrative Management Specialist (SAMS) subject to a one-year supervisory probationary period in the Agency’s New York District Office in Jamaica, New York. Effective March 3, 2019, Complainant received a management-directed reassignment to a nonsupervisory GS-0301-12 Administrative Management Specialist (AMS) position. On May 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), religion (Christian), color (White), age (born in November 1958), and 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. 2 The initially premature appeal has since been cured by the Agency’s issuance of the final decision. 2021003416 2 1. On March 4, 2018, Complainant’s supervisor, the Program Administrative Officer (PAO), told her, as a “heads-up,” that she would not receive a better performance rating from her than Level 3 (3.00). When Complainant voiced to her that she was shocked that, without even knowing Complainant’s accomplishments, she had set an arbitrary level of performance for her, barely above failing, the PAO tried to convince Complainant that Level 3 is a good rating and stated that she is a tough evaluator; 2. On March 4, 2018, the PAO approved Complainant’s former Budget Officer (AMS-1) to go on an elective two-month long medical leave starting in mid- March. This action left Complainant without any support to get her familiar with the Agency’s system, processes, funding codes, and practices. Losing this support was a major setback in Complainant getting grounded and to succeed in her new position; 3. In the spring or summer of 2018, the PAO approved AMS-1’s transfer to another division without ever sharing this information with Complainant and established a departure date for the employee while neglecting to inform Complainant of this action. This action left Complainant without a Budget Officer four months into her employment and without any personnel filling the void, although the PAO was aware that Complainant did not even have system access. Complainant’s perception of these actions was that the PAO was setting her up for failure by eliminating one of the most essential administrative supports she needed to succeed in her position; 4. In or around March 2019, after evicting Complainant from her office space, the PAO moved another administrative staff member there and kept Complainant in the District Office area, although there was an empty office space on another floor. Complainant believed this and other actions were taken to increase her humiliation and anxiety and break her spirit by creating a hostile work environment, subjecting her to harassment and an elevated level of stress, in hopes of pushing her to the point to renounce her faith and beliefs; 5. In March of 2019, following Complainant’s demotion, she was assigned as the new Budget Office in the New York District Office with the new primary function of financial management and handling of all facets of procurement actions and purchasing. When Complainant objected to this assignment, which she perceived as another attempt to set her up for failure and further subject her to harsher adverse actions, the PAO ignored her objections. The PAO told Complainant during the first week of March 2019 that she really “wanted to terminate” her, although she never explained why; 6. On March 3, 2019, on Complainant’s first-year anniversary, Complainant was demoted from her SAMS position due to a Level 2 performance appraisal rating for 2018 while she was attending “New Supervisors Training.” The performance appraisal rating was issued without any formal warning from the PAO that her performance was perceived as failing, and the PAO failed to issue a performance improvement plan (PIP) or outline a specific course of action to improve her alleged performance deficiencies despite a 2.63 rating. The management directed 2021003416 3 reassignment was issued devoid of options regarding accepting or declining the demotion and the consequences if Complainant elected to do so. The PAO also aggressively pressured Complainant to give an immediate answer regarding her decision to accept the adverse action; 7. During late March 2019, the PAO went to Complainant’s office and, in the middle of a discussion, started to laugh and told her, “you know that I’m riding you.” While Complainant felt that her comment was offensive, derogatory, and racist, her other interpretation of this statement was that she sought her breaking point, as Complainant had previously objected to her condescending tone and language; 8. During March 2019, Complainant informed the PAO that Complainant would appreciate it if her supervisor took into consideration that she has a heart condition. In response, the PAO’s face lit up with a broad smile, and she broke out laughing, jumped up from a chair, and started to dance in the middle of her office, mimicking as if she were jumping over a dead body; 9. In early April 2019, the PAO initiated a disciplinary action against Complainant for requesting office supplies for her workstation. Although this charge was dropped without a decision, since Complainant did not commit a violation, there was no apology issued for the false accusation, and her supervisor included verbiage in her 2019 performance appraisal implying that Complainant “attempted to buy personal items on federal funds”; 10. On July 25, 2019, the PAO suddenly changed Complainant’s supervision. Complainant continued to perform her daily duties reporting to her new supervisor (SAMS-1), Complainant’s rating official became a different supervisor (SAMS-2), who had no oversight of Complainant’s work or its results at all. All five other members of the New York administrative team remained under the supervision and rating of SAMS-1, while Complainant was separated from the workgroup. There was no explanation given for this action; 11. In July 2019, after SAMS-1 came onboard at the New York District Office, the PAO immediately began to create a hostile work environment by implying to SAMS-1 that Complainant was “incompetent” handling the budget, even though the PAO kept her in the position as Budget Officer; 12. On February 5, 2020, Complainant reported she received a 2019 performance evaluation that did not reflect her performance, issued solely by the two managers against whom she had an active grievance, SAMS-2 and the PAO. The appraisal did not include any input from the person who actually supervised her, SAMS-1. Complainant believed that this action was done in retaliation for filing the grievance against management.3 3 The Agency dismissed three additional claims on procedural grounds. The Commission exercises its discretion to address only those issues specifically raised on appeal and declines to address the procedural dismissals. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 9, § IV.A (Aug. 5, 2015). 2021003416 4 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 (AJ). In accordance with Complainant’s request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). Using disparate treatment analysis, the Agency found that management officials provided legitimate, nondiscriminatory explanations for their actions in claims (5), (6), and (12). Regarding claim (5), the Agency noted that Complainant was reassigned not just because of budgetary issues but also because of concerns over her ability to supervise, including Complainant’s inability to cross-train staff and Complainant harassing a direct report over a reasonable accommodation request and treating the employee unfairly as a result of the disability accommodation. Although Complainant asserted that assigning her to an AMS position functioning as the Budget Officer was a set up to terminate her, the Agency concluded that Complainant failed to establish pretext for discrimination. For claim (6), the Agency determined that the record established that Complainant was reassigned to a nonsupervisory AMS position because her performance declined in the second half of the performance cycle, that the PAO had discussed performance issues with Complainant, that Complainant was not placed on a PIP because she did not fail any critical elements, and that Complainant was not entitled to respond to the notice of the management-directed reassignment. The Agency similarly found that Complainant did not establish pretext by preponderant evidence. The Agency found that the legitimate, nondiscriminatory explanation for the performance appraisal at issue in claim (12) was that SAMS-2 was the proper rater because she supervised Complainant for the final nine months of the evaluation period, that SAMS-2 rated Complainant 2.83 because managers had provided input and expressed dissatisfaction with Complainant’s work, that the PAO, who had supervised Complainant for the first three months of the evaluation period, raised Complainant’s rating to 3.0, and that a higher level manager declined to review Complainant’s evaluation because the PAO had already performed a secondary review. The Agency determined that, although Complainant expressed dissatisfaction with her rating, she failed to establish that the legitimate, nondiscriminatory reasons were pretextual. Although Complainant established that she was a member of various protected classes, the Agency found that Complainant could not establish a prima facie case of a hostile work environment. The Agency determined that Complainant failed to establish that some of the alleged harassment was based on her protected classes. The Agency noted that the PAO had approved AMS-1’s medical leave before Complainant’s start date, observed that AMS-1 had a legal right to use medical leave, and found that there was no evidence that the PAO approved AMS-1’s extended medical leave because of Complainant’s race, color, religion, age, and/or protected activity. 2021003416 5 Similarly, Human Resources approved AMS-1’s transfer date because she needed to attend training for her new position, and the PAO informed AMS-1’s gaining supervisor that Complainant might need to reach out to AMS-1 after her transfer for help with budget close out matters. The PAO removed Complainant from the supervisory office space so it could be used for the new supervisor, and Complainant was assigned to a new workspace near her coworkers. Although Complainant was humiliated to work near the employees she had formerly supervised, the Agency found that these decisions were not motivated by race, color, religion, age, and/or reprisal. The Agency determined that Complainant did not establish that some instances of harassment occurred as alleged. The PAO denied telling Complainant, “you know I am riding you” or mockingly jumping over Complainant’s dead body, and there were no witnesses to these instances of alleged harassment. Although Complainant found management’s assessment of her performance to be unfair, the Agency determined that, even taken as a whole, the alleged harassment was insufficiently severe or pervasive to constitute a hostile work environment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant requests a default judgment as a sanction for the Agency’s failure to timely issue the FAD. Complainant also contends that she established that she was subjected to discrimination and a hostile work environment.4 In response to Complainant’s appeal, the Agency argues that sanctions are not warranted for its delay in issuing the FAD. The Agency requests that the Commission affirm its final decision. 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 Chap. 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”). 4 Complainant submitted new evidence for the first time on appeal. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See EEO MD-110, at Ch. 9, § VI.A.3. 2021003416 6 Delayed FAD Issuance We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Vet. Aff., EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must ensure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, we find that the Agency failed to comply with the Commission's regulations. The record reveals that Complainant requested a FAD on February 25, 2021, but the Agency did not issue the final decision until August 23, 2021. The Agency did not dispute this fact but asserts that Complainant did not show how the delay in issuance of the FAD prejudiced her or otherwise resulted in an unconscionable delay in justice. Although the Agency failed to timely issue a final decision as required by our regulations, it did not act in a manner to warrant the sanction of a default judgment against it. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the agency's 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)). The Commission finds that there is no evidence that the Agency's delay in this case is attributable to contumacious conduct or bad faith. As such, under the specific circumstances present, we decline to sanction the Agency for its delay in issuing the final decision. While we will not impose a sanction in the present case, we do find the Agency's failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. Beatrice B. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019001641 (Sept. 17, 2020) (the Commission declined to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP), which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of final agency decisions. 2021003416 7 Review of the Agency’s Final Decision Upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination as alleged. The Agency provided legitimate, nondiscriminatory reasons for the its performance-based actions, and Complainant failed to establish pretext by the preponderance of the evidence in the record. Complainant asserted that she was set up for failure in 2018 when AMS-1 was approved for extended medical leave and then allowed to transfer, Complainant was allowed to reach out to AMS-1 after her transfer and that the PAO assigned SAMS-1 as Complainant’s mentor and offered to assist Complainant directly as well as the assistance of the PAO’s Budget Officer. However, the record reflects that Complainant did not reach out to these individuals for budget help because she assumed they were too busy. While Complainant alleged that, after SAMS-2 arrived in the New York District Office, SAMS-1 was assigned as Complainant’s supervisor as a form of punishment, the preponderance of the evidence establishes that SAMS-1 was already acting as Complainant’s supervisor in July 2019 and that the PAO decided to keep Complainant under SAMS-1’s supervision because SAMS-2 was a new supervisor and SAMS-1 was knowledgeable about Complainant’s performance deficiencies. Although Complainant cited the affidavits of two witnesses to support her claims, these witnesses both stated that they had not observed the working relationship between Complainant, the PAO, and SAMS-1 and had no direct knowledge of the claims. Accordingly, the Agency properly determined that the preponderance of the evidence in the record does not establish that Complainant was subjected to discrimination based on race, color, religion, age, and/or reprisal. 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 final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021003416 8 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003416 9 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 22, 2022 Date