Cortney E.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120172210 (E.E.O.C. Oct. 23, 2018)

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

Cortney E.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120172210

Hearing No. 570-2015-00810X

Agency No. HHSOS00022015

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2017
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an executive
assistant, 301, GS-13 at the Agency’s Thomas O'Neill Building facility in Washington, District
of Columbia.

Complainant previously filed EEO complaints in 2009 and 2012. She initially contacted an EEO
counselor with respect to the instant claim on September 29, 2014.

On January 7, 2015, Complainant filed a formal EEO complaint alleging that the Agency
subjected her to ongoing harassment (non-sexual) on the basis of reprisal for prior protected EEO
activity, beginning in March 2014.

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.
0120172210

2
She alleged that, beginning in March 2014, her supervisor (SV) increasingly gave her less work
assignments, blocked her from calendars, and intentionally excluded her from essential emails,
which resulted in her receiving a lower performance evaluation in 2014. On September 25, 2014,
SV falsely accused her of fraudulent acts with government-issued credit and air cards. She
alleged that, on December 2, 2014, she received a threatening note stating that she “had better
not attend the Alternative Dispute Resolution (ADR) meeting scheduled for December 4, 2014.”
On December 18, 2014, she received an email advising that her job title would not be changed,
after having been told that the change was being worked on for months, and, on January 8, 2015,
received an email advising that she would be down-sized to a smaller cubicle without doors and
in a different location. SV also left a note on Complainant’s chair indicating information about
Complainant’s previous complaints and admitting to setting Complainant up to be terminated.

With respect to Complainant’s allegations relating to less work, being blocked from SV’s
calendars, and being excluded from emails, SV testified that, as an executive assistant,
Complainant’s job was to provide administrative support in scheduling and basic administrative
tasks. SV did not need the level of support that Complainant’s prior supervisor needed in those
areas. SV inadvertently did not include Complainant in one email and she apologized for that
incident.

With respect to the alleged fraudulent activity, SV testified that, on September 25, 2014, she
found an envelope on her chair in her office containing a document indicating Complainant had
fraudulently used her government-issued credit and air cards in February, April, and August
2014, in the amount of $1,503. SV emailed Complainant and told her turn in her government-
issued credit card. Complainant testified she did not have a government-issued credit or air card.
This was confirmed by the travel office. The person noted as the sender of the document
indicated she did not send the document. SV concluded that someone had committed a
fraudulent act and SV did not know if she or Complainant was the target.

With respect to the threats relating to attending the ADR meeting on December 4, 2014,
Complainant indicated she received a note telling her not to attend the meeting. She did not
know who put it there but she became extremely stressed and physically ill as a result. She did
not speak to SV about it because she was frightened and nervous. She did not attend the ADR
session. SV indicated she had no knowledge of this note and learned Complainant called in sick,
just before the meeting was to take place.

With respect to Complainant’s being downsized to a smaller cubicle, Complainant testified that
she had been given an “A” cubicle by her prior supervisor but SV said that, as per regulations,
executive and staff assistants could not have “A” cubicles. Complainant did not believe this was
the policy. She thought it was grade (GS-13 or higher) and not title that determined who was
assigned the “A” cubicles. SV testified that all administrative staff were to be seated in similar
cubicles. Executive and staff assistants were in “B” or “C” cubicles and Complainant would be
moving to a “B” cubicle as well. This was based on a decision by the Office of Emergency
Management (OEM) regarding positions and cubicles.
0120172210

3
A staff member charged with consolidating staff housing (HS) indicated Complainant was the
only executive assistant in an “A” cubicle and she was moved to be consistent with the housing
plan.

With respect to Complainant’s title change, Complainant testified that she had discussed this
with SV and her prior supervisors and, in December 2014, she received an email from SV stating
that, if they changed her title, they would have to create a whole new position, which would be
impossible. Complainant believed this was retaliatory. SV testified that Complainant’s prior
supervisor wanted to change Complainant’s title to program analyst, but the GS series for
executive assistant was 301 and for program analyst was 343. In order to do this, they would
have to create a new position and advertise it as a vacant program analyst position and they did
not have a slot for a program analyst.

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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on March 28, 2017. 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.

In the final order, the AJ found that, with respect to Complainant’s allegation that SV acted in
retaliation for Complainant’s 2009 and 2012 EEO complaints, these EEO complaints were too
remote in time to support a nexus between the current allegations and that prior EEO activity.
The only remaining EEO activity was that which the Complainant initiated on September 24,
2009, which was after Complainant’s allegations relating to fewer work assignments, calendar
access, and misuse of government-issued credit and travel cards. Thus, Complainant failed to
establish a prima facie case of reprisal with respect to these allegations.

The AJ also found that even if Complainant had established a prima facie case, the Agency put
forth legitimate, non-discriminatory reasons for its actions and Complainant failed to provide
legally sufficient evidence to establish a genuine issue of material fact regarding pretext and
retaliatory motivation. With respect to the work assignments and scheduling, the AJ noted that
SV indicated her support needs and calendar preferences differed from the prior supervisor’s and
the very nature of an executive assistant lends itself to variations in duties, depending on the
supervisor, her schedule and work style. With respect to the allegations relating to the
government-issued credit and travel cards, SV’s assertions regarding this incident are supported
by the record and there is no evidence to support Complainant’s allegation that this was in
retaliation for her EEO activity.

The AJ found Complainant had established a prima facie case of retaliation with respect to the
remaining allegations of being left off an email, receiving the note about not attending the ADR
meeting, the cubicle change, and denial of the job title change.
0120172210

4
With respect to being left off an email, the email at issue related to a 59-minute early release; the
AJ noted that SV indicated she used a previously used 59-minute release email, which did not
have Complainant on the distribution list. With respect to the anonymous note, the AJ noted that
Complainant failed to provide the note or mention it to anyone at the time. With respect to the
cubicle reassignment, SV relocated Complainant based on information from OEM that cubicle
assignments were made based on function and not grade and Complainant was moved into a “B”
cubicle, as were all of the executive assistants. With respect to the job title change, the AJ noted
that, while SV and Complainant’s prior supervisor had discussed changing Complainant’s job
title and SV worked to address the issue with the Division of Workforce Development, the
request was more than a simple job title change; it involved a series change and the creation of a
new position. Thus, the AJ found Complainant had failed to provide legally sufficient evidence
to establish a genuine issue of material fact with respect to any of these allegations. The AJ
found Complainant’s allegations did not warrant a hearing, found summary judgment was
appropriate, and granted the Agency’s motion for decision without a hearing.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that there are questions of material fact. She reiterates her
contentions that she participated in protected EEO activity in 2009, 2012, and 2014; SV took
action against her; and a causal connection exists between that protected EEO activity and SV’s
discrimination/harassment/retaliation. She argues that she has not been given the opportunity for
discovery and a hearing is necessary.

In response, the Agency reiterates the AJ’s factual findings and asserts that the AJ’s legal
findings were correct. Thus, the Agency asserts that there were no disputed issues of material
fact and Complainant failed to show she was subjected to retaliatory harassment, as alleged.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated.
0120172210

5
See id. at Chapter 9, § VI.A. (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”).

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one
party without holding a hearing unless he or she ensures that the party opposing the ruling is
given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive
statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a
statement, and (4) the chance to engage in discovery before responding, if necessary. According
to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing
summary judgment] has not had the opportunity to discover information that is essential to his
opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2)
(suggesting that an administrative judge could order discovery, if necessary, after receiving an
opposition to a motion for a decision without a hearing).

Upon review of the record, we find that there are no genuine issues of material fact presented
here. The record has been adequately developed, Complainant was given ample notice of the
Agency's motion for a decision without a hearing, she was given a comprehensive statement of
the allegedly undisputed material facts, she was given the opportunity to respond to such a
statement, and she was given the chance to engage in discovery before responding, if necessary.
0120172210

6
We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not
find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision
without a hearing was appropriate.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine.
450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).

Assuming Complainant established a prima facie case of discrimination based on race, age, sex
and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its
actions as set forth above. While Complainant argues that the evidence presented by the Agency
is insufficient to warrant summary judgment, Complainant had an opportunity to conduct
discovery and set forth any admissible evidence that demonstrates that the reasons presented by
the Agency were pretext for discrimination. While Complainant on appeal maintains that she was
subject to harassment and/or discrimination in retaliation for her prior EEO activity and that
there are issues she feels remain open and need to be addressed, she has not presented evidence
that would prove by a preponderance that the Agency's legitimate, non-discriminatory reasons
are a pretext for discrimination. Accordingly, we find no persuasive evidence of pretext or
discrimination on the part of the Agency.

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.

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.
0120172210

7
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. 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.

0120172210

8

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 23, 2018