Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120114122 (E.E.O.C. Mar. 14, 2013)

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

,
Complainant,

v.

Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120114122

Hearing No. 531-2009-00148X

Agency No. HHSNIH12982008

DECISION

On September 2, 2011, Complainant filed an appeal from the Agency’s August 3, 2011 final
order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
it is accepted for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Assistant
in the Agency's Patient Care Unit, Most Efficient Organization, Ambulatory Care Services,
Department of Nursing, Clinical Medical Center of the National Institute of Health, located in
Bethesda, Maryland. On August 1, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (African-American), sex (female),
disability, age (52), and in reprisal for prior protected EEO activity when: (1) in February
2007 and continuing, she was removed from her permanent workstation and denied access to
the conference room, copy room and medication room; (2) in February 2008, she received a
"Minimally Successful" performance evaluation; (3) in March 2008, she was denied a schedule
change; (4) in May 2008, her request for leave without pay (LWOP) was denied and she was
placed in an absent without leave status (AWOL); (5) in June 2008, she was placed on Special
0120114122

2
Leave Procedures while she was out on workers’ compensation; and (6) on July 29, 2008, she
was suspended for three calendar days.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s July 7, 2009, motion for summary
judgment and issued a decision on July 15, 2011. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

UNDISPUTED FACTS

The AJ noted the following facts viewed in the light most favorable to Complainant.

A reorganization of the Patient Care Unit took place effective March 15, 2007, in which
several clerks, including Complainant, voluntarily accepted positions as floaters. As a floater,
Complainant was assigned to a department or unit based on the needs of the unit. She
performed duties such as scheduling patient appointments, supplying information to family
members, stocking copiers with paper, or filing medical information. Complainant states that
in early 2007, her former second-line supervisor (S02), then manager of the Patient Care Unit,
told her she would learn the required functions on each of the different floors but would be
assigned to a permanent floor when contractors were hired. Complainant asserts that, instead,
she was given a permanent home base and assigned to as many as two or three places per day
while contractors have been assigned to the same unit for up to three years. Complainant also
asserts that she is denied access to the conference room, copy room and medication room. She
avers that younger contractors have access to these rooms and she must ask them for access.

S1 states that she cannot grant access to the rooms that Complainant identifies because access
comes from the nurse managers of each unit. S1 also states that floaters typically do not have
access to restricted areas for security reasons and medication rooms are restricted from the
administrative staff. According to an acting supervisor (AS), none of the floaters/clerks have
access to the medication room and their badges do not provide access to supply areas. AS also
averred that conference rooms generally remain locked and employees must ask clinical staff
for access to them.

In February 2008, S1 gave Complainant a "Minimally Successful" performance evaluation.
The appraisal period for the evaluation was from August 2007 through December 31, 2007.
Complainant's performance evaluation states that, among other things, she "did not complete
2007 Mandatory Reviews;" she "[d]oes not consistently communicate with staff and her
supervisor when she has not been able to complete required . . . tasks . . ." and does not
accurately enter daily variance schedules. S1 placed Complainant through a retraining
program because she was unable to perform basic floater tasks such as supporting nursing staff
by providing information to family members, pulling medical records, stocking copiers with
0120114122

3
paper or filing medical information. S1 learned of these problems through complaints from
other staff. Complainant's problems persisted even after she went through the retraining
program. Complainant asserts that she completed her 2007 Mandatory Reviews and submitted
copies to her former supervisor (S01) to give to S02 but that the Agency misplaced them.

In March 2008, Complainant asked S1 for a change in work schedule. She requested to work
on Friday evenings in order to have more flexibility to care for her husband while he was ill.
S1 denied Complainant's request because there was no work available in that time slot.

Complainant avers that S1 permitted a staff member (C2) to work on Friday evenings. In
addition, Complainant asserts that S1 permitted C2 and another employee (C3) to enter and
leave work early. S1 denies this assertion but adds that C2 was permitted to work on Friday
nights periodically, when the nursing manger made a special request for additional coverage
due to patient volume.

On May 22, 2008, Complainant emailed S1 asking for time off the next day because she
needed to take her husband to the Veteran's Affairs (VA) hospital. S1 denied Complainant’s
request for time off because of staffing needs that day and because Complainant did not
produce documentation to justify the lack of proper notice. Complainant did not report for
work on May 23, 2008, and S1 placed her on AWOL status.1

On June 10, 2008, S1 issued Complainant a Memorandum entitled "Special Leave Procedures"
(SLP) explaining that she was concerned about Complainant’s "failure to properly request
leave" and notify S1 about her absences. The SLP cited S1’s concerns about Complainant
having approximately 370 hours of LWOP since January 2008, stating that the unscheduled
absences were "excessive."
.
Complainant had a history of paging her supervisors at inappropriate hours despite being
instructed not to. In response to this behavior, S1 informed the entire staff that they should not
page management officials between the hours of 6:00 pm and 5:00 am. Even after she
received admonitions from S2 and S1, Complainant continued to page S1, the nurse
administrative coordinator, and other supervisors approximately 21 times outside of work
hours. The dates on which she engaged in this conduct included June 10, 2008, June 11,
2008, June 21, 2008, June 22, 2008, June 24, 2008 and June 25, 2008.

On June 26, 2008, S1 issued Complainant a Proposed Three-Day Suspension. S1 summarized
the two principal reasons for the suspension as: (1) Complainant failed to comply with
supervisory instructions; and (2) Complainant behaved in an inappropriate and disrespectful
manner toward a supervisor. Complainant’s second line supervisor (S2) sustained the charge
regarding Complainant's failure to adhere to her supervisory instruction because Complainant's
"repetitive calls late in the evening, early in the morning, on weekends and to persons other

1 Complainant never produced documentary or testimonial evidence to support her assertion
that the VA appointment on May 23, 2008, was an unexpected emergency.
0120114122

4
than those specified in [her] SLPs and outside the specified order were against a direct
order..." S2 also sustained the charge against Complainant regarding disrespectful conduct
toward S1 because she repeatedly raised her voice during a phone conversation with S1 on
June 10, 2008, although she was asked not to. Complainant filed a response to the proposed
suspension which stated that she was following the instructions found in the SLP when she
made numerous phone calls to her supervisors. She did not dispute the charge regarding the
disrespectful tone toward S1 but did not think such behavior warranted a suspension. On July
29, 2008, the Agency issued a Decision on the Proposed Suspension and suspended
Complainant for three calendar days.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the
potential to affect the outcome of the case.

The AJ assumed for the purpose of the decision that Complainant established a prima facie
case of discrimination on all bases alleged.2

With respect to Claim 1, the AJ noted that the
Agency proffered legitimate, non-discriminatory reasons for the restrictive access.
Specifically, S1 affirmed that she did not have the ability to grant access to the rooms
identified by Complainant because access must come from the nurse managers of each
particular unit. S1 noted that floaters typically do not have access to restricted areas for
security reasons and that medication rooms are restricted from the administrative staff. AS
corroborated S1’s testimony. The AJ further noted that Complainant did not rebut S1 or AS’s
statements. In addition, the AJ noted that the record is devoid of evidence to establish that
similarly situated employees outside Complainant’s protected classes were treated more
favorably. Accordingly, the AJ concluded that Complainant is unable to show that she was
discriminated against on the bases of her race, gender, age, disability or reprisal in her
inability to access these rooms.

2 The AJ dismissed Complainant’s workstation removal claim because she did not provide any
factual evidence in support of such claim.
0120114122

5
With respect to Claim 2, the AJ concluded that the Agency set forth legitimate, non-
discriminatory reasons for its performance review. Specifically, the performance evaluation
itself sets forth legitimate, non-discriminatory reasons for the "Minimally Successful" rating.
In addition, S1 stated that all floaters completed a month of hands-on job training in all
appropriate areas, but that Complainant experienced trouble completing the necessary tasks
despite this training. S1 also noted that she received complaints from staff members regarding
Complainant's failure to work efficiently and that Complainant had taken personal liberties
such as surfing the internet at work. S1 testified that Complainant's problems persisted even
after she underwent retraining.

The AJ noted that in an effort to establish pretext, Complainant asserts she completed her 2007
Mandatory Reviews and submitted copies to S01 to give to S02, but that the Agency misplaced
them. Notwithstanding Complainant's arguments, the AJ noted that she did not produce a
copy of the completed 2007 Mandatory Reviews. Moreover, the AJ noted that Complainant
did not address the Agency's criticisms regarding her work performance. Accordingly, the AJ
concluded that the record is devoid of evidence showing that the "Minimally Successful" rating
was the result of discrimination or reprisal.

With respect to Claim 3, the AJ concluded that the Agency proffered legitimate, non-
discriminatory reasons for denying the change in Complainant’s work schedule. Specifically,
S1 testified that there was no work available at the Friday evening time slot when Complainant
desired it. According to S1, the Agency did not have the volume required to support
Complainant's schedule change.

Complainant argues that S1’s justification was a pretext for discriminatory animus.
Specifically, Complainant asserts that S1 permitted C2 to work on Friday evenings and allowed
C2 and C3 to enter and leave work early. However, S1 testified that neither C2 nor C3 ever
requested or were authorized for a schedule change. C2 was only permitted to work
sporadically on Friday nights when the nursing manager made a special request for additional
coverage due to patient volume.

The AJ noted that Complainant did not provide any testimonial or documentary evidence to
corroborate her assertions or rebut the Agency’s testimony. More importantly, the AJ noted
that the record is devoid of evidence showing that the necessary volume of work existed or that
the Agency had a need for Complainant’s services at the time she requested the change.
Accordingly, the AJ concluded that Complainant cannot show that S1’s denial of a change in
Complainant’s work schedule was the result of discrimination or reprisal.

With respect to Claim 4, the AJ concluded that the Agency proffered a legitimate, non-
discriminatory reason for its action. Specifically, S1 stated that she denied Complainant's
request for time off on May 23, 2008, and placed her on AWOL because Complainant failed to
produce proper documentation to justify the lack of advance notice.

0120114122

6
Complainant argues that the Agency's reason was pretext for discrimination. Specifically,
Complainant asserts that a VA representative called S1 to confirm that Complainant needed to
leave for a medical emergency. Complainant also asserts that the representative faxed written
documentation to S1. S1 denied speaking to anyone from the VA or receiving any
documentation. The AJ noted that since the record is devoid of corroborating evidence to
show that Complainant’s leave was for an unanticipated emergency, she cannot establish
pretext.

With respect to Claim 5, the AJ concluded that the Agency articulated legitimate, non-
discriminatory reasons for placing Complainant on the three-day suspension. Specifically,
Complainant did not comply with her supervisor's instructions and she spoke in a disrespectful
way to her supervisor on more than one occasion.

Complainant argued that the Agency's reasons were pretext for discrimination. Specifically,
Complainant asserts that when she tried to contact her supervisors multiple times outside of
working hours, she was actually following instructions from the June 9, 2008 SLP. The
Agency, however, pointed out that Complainant could have followed both the SLP
memorandum which instructed Complainant to “call [S1] by 6:00 a.m.” and the verbal
admonishment that she not call between 6:00 p.m. and 5:00 a.m. by calling in between 5:00
a.m. and 6:00 a.m. The AJ also noted that the record is devoid of evidence showing that
Complainant was treated differently from others outside her protected classes. Accordingly,
the AJ concluded that Complainant did not present sufficient evidence to support her claim that
the suspension was the result of unlawful discrimination by the Agency.

We assume for the purpose of this decision that Complainant established a prima face case of
discrimination/reprisal with respect to all bases alleged. Upon review of the record, we agree
with the AJ and find insufficient evidence to establish pretext or discriminatory/retaliatory
animus on the part of any responsible management official. Accordingly, we agree with the
AJ’s conclusions herein.3

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 order.

3 Assuming the AJ’s partial dismissal of Claim 1 was improper we, nevertheless, conclude that
the record is devoid of evidence of discrimination or retaliation with respect to Complainant’s
work assignments. Accordingly, summary judgment is also proper with respect to this issue.
0120114122

7
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999). 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.

0120114122

8
RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 14, 2013
Date