0120150205
03-29-2017
Sanda N.,1 Complainant, v. Thomas E. Price, MD., Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sanda N.,1
Complainant,
v.
Thomas E. Price, MD.,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120150205
Agency No. HHS-OS-0043-2013
DECISION
On October 18, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 12, 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 which found that Complainant did not establish that she was subjected to discrimination, reprisal, or harassment.
ISSUES PRESENTED
The issue presented in this case is whether the Agency correctly dismissed claims 1, 2, 7, 8, and 13, and whether the Agency correctly found that Complainant was not discriminated against or subjected to a hostile work environment on the bases of national origin (Hispanic) and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Health Analyst and Overseas Officer, GS-15, with the Office of the Secretary (OS), Office of Global Affairs (OGA), Operations Office in Washington, D.C. On May 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Hispanic) and reprisal for prior protected EEO activity when:
1. In September 2009, she transferred to (OGA) and was changed from supervisory to non-supervisor[y] into a[n] administrative position;
2. In September 2009, she was the only GS-15 employee in OGA that was not afforded the position of Director;
3. Since January 2012 until present, she was denied Telework;
4. Since June 2012 until present, she was prohibited from interacting with her co-workers to accomplish her task as part of establishing her 2013 PMAP;
5. Since June 2012 until present, she [h]as been required to use her personal time to complete the same work that her co-workers do as part of their tour of duty;
6. In June 2012, her detail to Pan Health organization (PAHO) was cancelled, with no explanation;
7. On June 12, 2012, her supervisor ordered her not to use her person[al] iPad for government business;
8. On June 27, 2012, during her mid-year performance review her supervisor wrote in her evaluation that "until I understand your capabilities I will need to be cc'd on all email communications related to your assigned duties;"
9. On January 29, 2013, and on several other occasions her supervisor spoke to her in [a] disrespectful and rude manner;
10. On February 14, 2012, she receive[d] a "Minimally Successful" PMAP evaluation for [the] calendar year 2012;
11. On March 5, 2013, her supervisor instructed her to leave a meeting with OGA Health Attaches and other senior officials, which humiliated her in front of her co-workers;
12. On March 6, 2013, her supervisor instructed the OGA Budget Specialist that she was not to collaborate with her;
13. On March 12, 2013, her supervisor challenged her participation in the HHS Hispanic Employees Organization and her contribution to HHS efforts to increase the hiring and retention of Hispanic employees.
On August 23, 2013, Complainant amended her complaint. On September 19, 2013, the Agency accepted her claim that she was discriminated against and subjected to a hostile work environment on the bases of her National Origin (Hispanic) and Retaliation (for prior EEO activity) when:
14. On July 31, 2013 [she] received [her] mid-year performance rating from [her] supervisor, stating that [her] performance did not exceed Level 2, Partially Expected Results, in some areas; and
15. On August 5, 2013, [her] supervisor continuously changed the due date for a complex project that [she] was working on without any explanation.
On June 13, 2013, the Agency dismissed claims 1 and 2 for untimely contact, and dismissed claims 7, 8, and 13 for failure to state a claim. The Agency accepted claims 3, 4, 5, 6, 9, 10, 11 and 12 for investigation.
After 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 pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged. Specifically, the Agency found that assuming arguendo that Complainant established a prima facie case of reprisal and discrimination as to all issues, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was denied telework because she was not performing at the fully-successful level; and as such, she did not have a valid telework agreement so she could not telework. (Claim 3).
Management explained that in March 2013, it was noticed that the Budget Specialist was struggling to complete her work because Complainant was spending large amounts of time with the Budget Specialist asking for assistance with her tasks. The Budget Specialist was told to not let Complainant interfere with her doing her work and that she should tell Complainant that she had work to complete. (Claim 12). Thereafter, Complainant was told by her supervisor that she needed to work independently. (Claim 4). Complainant was also told when she indicated that she had to work additional hours to complete her work that she should only perform work during her scheduled hours and that she had to obtain advanced approval to work additional hours. (Claim 5).
Further, management indicated that Complainant's detail was cancelled because the newly appointed Principle Deputy Assistant Secretary decided that the work Complainant would be doing did not justify moving her for two years at the Agency's expense. (Claim 6).
Regarding Complainant's 2012 Performance Rating, management explained that during Complainant's mid-year evaluation on June 27, 2012, she was told that she was performing at the minimally successful level. Complainant was informed that she needed to improve her performance to increase her overall performance rating. She was also told that she needed to learn how to work independently, turn in assignments in a timely manner, and respond to emails in a timely manner. According to the Agency, Complainant's performance did not improve so therefore she received a minimally successful rating for the 2012 performance period. (Claim 10).
The Agency also indicated that Complainant was politely asked to leave a meeting after the matter pertaining to her duties was discussed. Complainant argued that she was involved in the planning of the meeting and that it was embarrassing for her to leave the meeting, management explained however, that she was discretely called out of the meeting as the remainder of the meeting had nothing to do with her job. (Claim 11). The Agency also maintained that Complainant received a Partially Achieved Expected Results on her July 31, 2013, mid-year review because it was noted that she had improved in some areas but there were several areas that she still needed to show improvement. Specifically, the areas that were addressed in her 2012 performance evaluation, i.e., she needed to respond to emails in a timely manner, she needed to make deadlines, and she needed to require less supervision. (Claim 14). Management also noted that Complainant provided no specific incidents of what she considered to be disrespectful or rude statements by her supervisor, and denied that she was ever addressed or treated in a disrespectful manner. (Claim 9).
Additionally, management denied that Complainant's deadlines were constantly moved. Management indicated that Complainant was given a deadline to provide the 2015 budget estimate. Her work was part of an overall report and when Complainant did not provide the information that she was required to provide, that required the due date for the overall report to be pushed back. (Claim 15).
The Agency argued that other than disagreeing with the Agency, Complainant did not show that the Agency's reasons were pretext for discrimination.
Finally, the Agency maintained that it properly dismissed claims 1, 2, 7, 8, and 13. Specifically, the Agency indicated that claims 1 and 2, were dismissed as untimely, because they occurred more than a year prior to Complainant's contacting an EEO Counselor. Complainant argued that these claims should have been considered continuing violations as she was reassigned and not afforded the Title of Director. The Agency however, found that these were discrete acts that occurred in 2009 and Complainant's complaint was not filed until 2013. Regarding claims 7, 8, and 13, (no use of personal I-Pad for work, having to copy her supervisor on all communications, and her reduced participation in the Hispanic employee organization), the Agency maintained that Complainant did not show that she was aggrieved. The Agency indicated, however, that the claims were used as evidence in support of her accepted claims. The Agency indicated that the claims in total deal with work related issues and were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant makes the same contentions that she made during the complaint. In response, the Agency also asserts the same arguments made in the FAD, namely that it articulated legitimate, nondiscriminatory reasons for actions and Complainant did not show pretext.
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").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of national origin discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as discussed above. We find that Complainant presented no evidence which showed a nexus between the actions taken by the Agency and her national origin or prior EEO activity. While it is clear, that Complainant disagreed with the Agency's actions we find that she did not show that discriminatory animus was involved. The record showed that she was in a new position with new supervisors and new performance expectations. The evidence in no way suggests that discrimination was involved. At most, it reflects normal workplace interactions and expectations.
Moreover, we find that Complainant has not established that she was subjected to a hostile work environment, we find that the incidents complained of were workplace interactions and were not severe or pervasive enough to establish a hostile work environment.
Finally, we find that claims 1 and 2, were properly dismissed as the evidence shows that these claims were untimely as they were not brought to the EEO Counselor's attention within the 45-day prescribed period after the events occurred. The facts show that these events occurred over a year before Complainant contacted an EEO Counselor and as such the claims are untimely. We also find that claims 7, 8, and 13 were properly dismissed for failure to state a claim as Complainant did not show how she was aggrieved regarding these claims. We note, that the discrimination laws are not civility codes and Complainant always has the burden to show that discrimination occurred. We find in the instant case that Complainant did not make this showing.
CONCLUSION
Accordingly, the Agency's FAD which found no discrimination, reprisal, or hostile work environment is AFFIRMED.
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, 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. s signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/29/17________________
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
0120150205
7
0120150205