Daniell F.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

Sep 13, 2018

0120162561 (E.E.O.C. Sep. 13, 2018)

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

Daniell F.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.

Appeal No. 0120162561

Hearing No. 410-2014-00054X

Agency No. HHS-CDC-0121-2013

DECISION

On August 2, 2016, 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
June 30, 2016, 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 the Equal Pay Act of 1963, as amended, 29 U.S.C. §
206(d) et seq. 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 Health Scientist, GS-
0601-13, at the Agency in the Centers for Disease Control and Prevention’s Environmental Public
Health Readiness Branch (EPHRB). The EPHRB is also known as the Chemical Weapons
Elimination Branch because of the work done under a Congressional Mandate for chemical
weapon elimination. Complainant’s first level supervisor (S1) was the Supervisory Health
Scientist in the EPHRB. S1 was also referred to as the Branch Chief of the EPHRB.
Complainant’s second level supervisor (S2) was the Director of the Division of Emergency and
Environmental Health Services.

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 March 25, 2013, Complainant filed an EEO complaint, which was subsequently amended,
alleging that the Agency discriminated against her and subjected her to a hostile work environment
on the bases of sex (female) and in reprisal for prior protected EEO activity when:

1. On March 14, 2013, Comparative 2 was placed in a position of authority over
Complainant even though he was part of her EEO complaint;
2. In February 2013, Complainant was denied the opportunity to observe the Army’s
new equipment in the San Diego plant, and subsequently did not receive a copy of
the report;
3. On January 24, 2013, Complainant did not receive an “Outstanding” performance
review while Caucasian females received a rating of “Outstanding” on their
performance;
4. On January 23, 2013, Complainant was denied an opportunity to visit the site at
Tooele, Utah which is required for her work;
5. Since April 2010, in violation of the Equal Pay Act, Complainant has been
performing the same work as her Caucasian male counterparts who are at the GS-
13/15 grade level though she is a grade GS-13;
6. Since November 2012, she has been denied the opportunity to attend meetings and
communicate with individual outside her work group including upper management;
7. On July 22, 2014, Complainant was denied the opportunity to perform a site visit
so she could review the monitoring system in Dover; and
8. On July 31, 2014, Complainant was given a critical 2014 mid-year performance
evaluation.

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 requested a hearing, the AJ
held a hearing, and the AJ issued a decision on May 20, 2016.

Regarding Complainant’s claim that she has been performing the same work as male counterparts
who are at a higher grade, the AJ found Complainant, a GS-13 Health Scientist, failed to establish
a prima facie case of discrimination under the Equal Pay Act because she put forth insufficient
evidence that her job constituted “equal work” to that of the male comparatives, a Chemical
Engineer and an Environmental Engineer. Although all three positions had the same broad goal –
generally, the elimination of chemical weapons – Complainant failed to prove that the day-to-day
activities of her job were substantially equal to that of Comparative 1 or Comparative 2. The AJ
determined the evidence revealed Complainant’s position related more towards serving as a
scientist in the evaluation of public health issues or health hazards of a technical authority.
Comparative 1 was seen as a chemical engineering expert who provided expert chemical
engineering and public health guidance. Comparative 2 served as an environmental engineering
expert and senior level advisor for activities related to lethal chemical agent handling.

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Regarding Complainant’s claim of wage discrimination under Title VII, the AJ found the evidence
failed to show that Comparative 1 or Comparative 2, employees of a different sex, received a
higher wage for performing substantially the same work. Further, the AJ found the Agency
presented a legitimate, nondiscriminatory reason for its actions. S1 explained that Complainant’s
level of responsibility was not as high as Comparative 1’s or Comparative 2’s. He explained that
while Complainant was considered a subject matter expert, the comparatives were considered
leads. The AJ also noted that the Human Resources Specialist stated that the key factors when
comparing grade levels were supervisory control, complexity level, scope and effect, and
sometimes personal contacts. She noted that Complainant had a greater level of supervisory
control (meaning Complainant was more supervised) than the comparatives. She also noted that
their work was of a higher complexity than Complainant. Further, she indicated that the
comparatives’ job duties required them to deal with higher level individuals within organizations
than Complainant. The AJ found Complainant failed to prove that the Agency’s actions were a
pretext to mask illegal discrimination.

Regarding claim (1), the AJ found the Agency provided a legitimate, nondiscriminatory reason for
its actions. S1 explained that the action merely lifted an administrative burden, and Comparative
2 had no authority over personnel decisions and no supervisory role. The AJ found while placing
him in this role may have been uncomfortable for Complainant, there was no evidence to reflect
his placement was discriminatory. The AJ found Complainant failed to prove the Agency’s actions
were pretext to mask illegal discrimination.

Regarding Complainant’s claims that she was denied the opportunity to attend site visits, the AJ
found the Agency provided a legitimate, nondiscriminatory reasons for its actions. S1 explained
that the San Diego site visit was postponed by the Army. He further noted that Complainant sent
him an email stating she did not want to go on the trip the week it was rescheduled. Additionally,
S1 stated that the dates for the Tooele site visit continued to change. At the time it was scheduled,
Complainant did not attend. Regarding the Dover trip, S1 explained that Person A was the only
one who attended this visit. He stated that they were only allowed to send one person to the facility
due to political attention-related concerns. Moreover, the evidence reflected that Complainant had
been on more trips and a similar number of site visits in 2013. Specifically, she had been on seven
trips in 2013, including four site visits. S1 had been on six trips that year with four being site
visits. Comparative 1 had been on five trips, all of which were site visits. Comparative 2 had been
on five trips, all of which were site visits. The AJ determined Complainant failed to prove that the
Agency’s actions were pretext to mask illegal discrimination.

Regarding claim (3), the AJ found the Agency provided legitimate, nondiscriminatory reasons for
the rating. S1 explained that Complainant received a 4.4 out of a possible 5, which was “Achieved
More Than Expected Results.” S1 stated this was the rating she deserved. The rating was the
second highest rating. The AJ noted that S2 reviewed Complainant’s rating and believed the rating
was accurate. The AJ found Complainant failed to prove that the Agency’s actions were pretext
to mask illegal discrimination.

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Regarding claim (6), the AJ found the Agency provided a legitimate, nondiscriminatory reason for
their action. S1 explained that Complainant was not a lead and therefore, did not attend all upper
management meetings. S1 further stated that everyone does not attend all upper management
meetings. Moreover, S1 commented that Complainant had advised him not to include her in some
meetings because she did not want to be involved. The AJ found Complainant failed to prove the
Agency’s actions were pretext to mask illegal discrimination.

Regarding claim (8), the AJ found the Agency articulated legitimate, nondiscriminatory reasons
for its action. S1 cited various instances prior to her mid-year evaluation where Complainant had
been made aware of issues with her communication. No action was taken as the result of her being
given feedback that she perceived as critical. The AJ found Complainant failed to prove that the
Agency’s actions were pretext to mask illegal discrimination.

The AJ also determined Complainant failed to establish that the incidents about which she
complained were sufficiently severe or pervasive so as to alter the terms or privileges of her
employment.

The Agency subsequently issued a final order on June 30, 2016. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

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. National Labor Relations Board, 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 EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

After a careful review of the record, including Complainant’s brief on appeal, the Commission
finds that the AJ's findings of fact are supported by substantial evidence in the record and that the
AJ's decision properly summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's decision.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFRIMED.
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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. 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.

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to
file a civil action in a court of competent jurisdiction within two years or, if the violation is willful,
three years of the date of the alleged violation of the Equal Pay Act regardless of whether you
have pursued any administrative complaint processing. The filing of the 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

September 13, 2018
Date