Bryce M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120171224 (E.E.O.C. Oct. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bryce M.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120171224

Agency No. HHS-NIH-NIDCR-130-15

DECISION

On February 15, 2017, 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
January 10, 2017 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. The Commission accepts the appeal in accordance
with 29 C.F.R. § 1614.405.

BACKGROUND

From December 2009 through September 2013, Complainant worked as a Clinical Fellow, T-42,
for the Agency’s National Institute of Dental and Craniofacial Research (NIDCR), at the National
Institutes of Health in Bethesda, Maryland.

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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On September 21, 2015, Complainant contacted an EEO Counselor regarding claims of
discrimination based on his sex, national origin, and reprisal for prior protected EEO activity.2
Informal efforts to resolve Complainant’s concerns were unsuccessful. On December 13, 2015,
Complainant filed a formal complaint.

The Agency framed the claims as follows:

1. In September 2010 and December 2012, Complainant was denied a
promotion as a Staff Clinician.

2. Starting in July 2012 through July 2013, Complainant’s on-call payment
was gradually reduced and, to date, his request for restoration has been
denied which he was told that he was entitled to receive.

3. On July 31, 2013, Complainant was terminated from his clinical fellowship
position.

4. In October 2012, Complainant was issued a Letter of Counseling.

5. In October 2012, Complainant’s clinical duties were terminated.

On June 24, 2016, the Agency dismissed claims (1), (3), (4) and (5) for untimely counselor contact.
The Agency reasoned that the allegedly discriminatory events occurred between September 25,
2013 and May 2, 2014, but Complainant did not contact the EEO Counselor until September 4,
2015. Claim (2) was accepted for investigation.

After an investigation of claim (2), the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b).

It its January 10, 2017 decision, the Agency concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.

2 Complainant also raised the basis of age but, after determining that he was less than forty years
old and therefore not covered by the Age Discrimination in Employment Act (ADEA), the Agency
did not process the claims of age discrimination. Complainant does not dispute the dismissal of
this basis. Consequently, we shall not consider it on appeal.
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ANALYSIS AND FINDINGS

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”).

Claim (2) – Disparate Treatment

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). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has 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).

In the instant case, Complainant alleges he was discriminated against when his pay for “on-call
duty” was reduced from $10,770.00 to $6,864.00. He contends that he was initially paid $10,770
in 2010. In December 2010, he was promoted to Post Graduate Year (PGY), five level, and signed
an updated on-call agreement. His on-call duty pay, however remained the same. The following
year, December 2011, he was again promoted (to PGY, six level), but his on-call duty pay was
reduced to $6,864.00. He attempted, unsuccessfully, to resolve the matter with the Agency for the
next three years.

The Agency contends that the decrease in pay reflected a reduction in the on-call duty hours
Complainant worked. For example, after working 12 weeks in one year, Complainant only worked
7 weeks of on-call duty the next year. The Agency explains that fewer on-call duty opportunities
were because of four new Clinical Research Fellows, as well as Staff Clinicians and Clinical
Assistants, who shared the duties.

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In response to the Agency’s proffered legitimate, non-discriminatory reasons, Complainant has
not provided any evidence of pretext. In fact, he has not provided any arguments or contentions
on appeal.

Moreover, we note that Complainant has failed to show any similarly situated Clinical Fellows
outside of his protected bases that was treated differently. He has not made any nexus between
the Agency’s actions and protected bases. The Commission agrees that Complainant has not met
his burden of proving that he was subjected to unlawful discrimination when the Agency reduced
his on-call duty pay.

Claims (1), (3), (4) and (5 )- Dismissal for Untimely 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 Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

The allegedly discriminatory events occurred between two and five years before Complainant, and
his attorney, contacted an EEO Counselor.3 Complainant has not provided any reason for his
extended delay in initiating the EEO process. Therefore, we find that the Agency’s dismissal of
claims (1), (3), (4) and (5) was proper.

3 The record contains correspondence between Complainant’s attorney and the Agency, regarding
the alleged incidents but in the absence of any reference to discrimination, well before the EEO
Counselor contact. Complainant’s attorney is reminded that The Commission has consistently held
that neither internal appeals nor informal efforts to challenge an agency's adverse action, nor the
filing of a grievance do not toll the running of the time limit to contact an EEO Counselor. See
Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller
v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989).

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CONCLUSION

We AFFIRM the Agency’s final decision of one claim on the merits, and in its dismissal of four
other claims for untimely EEO Counselor contact.

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 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.
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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
October 24, 2018
Date