U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Crista H.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120141761
Hearing No. 410-2011-00072X
Agency No. HHS-CDC-0233-2010
DECISION
The Commission accepts Complainant’s appeal from the Agency’s February 28, 2014 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission
AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Ethics Program
Manager at the Agency’s office in Atlanta, Georgia. Complainant has a genetic neurological
condition which primarily affects her fine motor skills; however, she contends that she is able
to perform the essential functions of her position. On February 10, 2010, Complainant
received her annual Performance Management Appraisal Program (PMAP) evaluation during a
one-on-one session with her supervisor (S1). Complainant received an overall rating of “Fully
Successful.” During the review, Complainant claimed that she pointed out several personal
accomplishments that she felt were noteworthy, and S1 decided to upgrade her rating in two
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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critical areas to “Exceptional;” however, her overall rating remained unchanged. Complainant
did not file a grievance to challenge the rating, but signed the evaluation.
Later that day, Complainant issued the PMAP evaluations of employees under her supervision.
Complainant rated one of her employees (E1) as “Fully Successful.” E1 was dissatisfied with
her rating and refused to sign her evaluation. E1 complained directly to her second-level
supervisor, S1. Complainant later learned that S1 changed E1’s evaluation from Fully
Successful to Exceptional, partly because E1 had performed Complainant’s job duties for part
of the year.
On April 20, 2010, Complainant claimed that S1 said that he was going to check with Human
Resources about her unexplained absences. Complainant emailed and asked for the basis of his
concern. S1 responded that he was not pursuing the matter further at that time. S1 did not
raise the matter again nor did he explore any actions that management could take as a result of
Complainant’s unexpected absences.
On April 11, 2010 (and amended on May 11, 2010), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), disability, and in reprisal for prior
protected EEO activity when:
1. On February 10, 2010, she received an overall ''Fully Successful" rating on her
Performance Management Appraisal Program (PMAP) evaluation; and
2. On April 20, 2010, the Deputy Chief Operating Officer indicated he was going to
check with human resources about her “unexpected absences.”
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on March 25, 2013, and subsequently issued a
decision on January 22, 2014.
In her decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, with regard to her evaluation, Complainant argued that
she was discriminated against based on disability because a subordinate employee had her
evaluation raised without first consulting Complainant. The AJ determined that due to several
absences by Complainant, the subordinate employee had to perform her own job duties in
addition to the job duties of her supervisor, Complainant. Complainant conceded that for
several months the subordinate employee had to act as the ethics program manager when
Complainant was on long-term leave, although the subordinate employee’s rank was only an
ethics program specialist, a rank below ethics program manager. The subordinate employee
was performing the work of her supervisor without a pay raise which is why the Agency gave
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that employee an Exceptional rating on her evaluation. Furthermore, the AJ noted that
Complainant had received a Fully Successful rating in 2007 and 2008. The AJ determined
that, other than speculation, Complainant had presented no evidence of discriminatory or
retaliatory motivation.
Finally, as to S1’s comments about her absences, S1 was simply performing his normal
supervisory duties, which included talking to his subordinate about unexpected absences. The
AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
motivated by discriminatory or retaliatory animus. As a result, the AJ found that Complainant
had not been subjected to discrimination, reprisal, or a hostile work environment as alleged.
The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ erred by ignoring her arguments about
management changing her subordinate’s evaluation. Further, Complainant challenges the AJ’s
denial of her motion to amend. Accordingly, Complainant requests that the Commission
reverse the final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
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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). Once
Complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts
back to Complainant to demonstrate by a preponderance of the evidence that the Agency's
reasons for its actions are pretext for discrimination. Id. At all times, Complainant retains the
burden of persuasion, and it is his obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993).
Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to her performance evaluation
rating, S1 testified that he rated Complainant as Fully Successful based on his observation of
her performance and feedback he had received about her during the rating period. Hr’g Tr., at
86-87. The Executive Officer, who acted as S1’s deputy, testified that Complainant’s
performance was Fully Successful at best based on her frequent attendance issues and
numerous reports of untimely responses to clients. Id. at 128-29, 133. S1 further testified that
he considered several errors in judgment committed by Complainant in rating her. Id. at 85.
As a result, S1 rated Complainant as Fully Successful. Additionally, S1 explained that he
changed the rating of Complainant’s subordinate, E1, from Fully Successful to Exceptional
based on E1’s acceptance and successful completion of additional Ethics program matters that
Complainant failed to address herself. ROI, at 85.
Finally, with respect to Complainant’s absences, S1 testified that he made the statement about
Complainant’s attendance based on the frequency of her unexpected, last-minute call-ins. Hr’g
Tr., at 78. S1 testified that Complainant had just called in that morning and he stated to her
that he may need to speak with Human Resources about his concerns about her attendance
before taking any action. Id. at 79. S1 did not charge Complainant as absent without leave for
the absences or take any disciplinary action for the absences, however. Id. at 79-80.
The Commission finds that there is substantial evidence in the record to support that
Complainant did not establish that the Agency's explanation for its actions was a pretext for
discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory
animus. Thus, after reviewing the record and considering arguments on appeal, the
Commission finds that the AJ made reasonable credibility determinations, which are not
contradicted by objective evidence, and her factual findings are supported by substantial
evidence. Finally, to the extent that Complainant contends that she was subjected to a hostile
work environment with respect to the matters herein, the Commission finds that a finding of a
hostile work environment is precluded by the Commission's determination that Complainant
failed to establish that any of the actions taken by the Agency were motivated by
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discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept.
21, 2000). Therefore, the Commission finds that Complainant has not established that she was
subjected to discrimination, reprisal, or a hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.
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).
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 8, 2016
Date
