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

Equal Employment Opportunity Commission

Oct 25, 2018

0120171127 (E.E.O.C. Oct. 25, 2018)

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

Darius C.,1
Complainant,

v.

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

Appeal No. 0120171127

Hearing No. 570-2015-01203X

Agency No. HHS-OS-0014-2015

DECISION

On January 24, 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
December 23, 2016 final decision concerning his 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 Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Exclusions Staff
Director (Supervisory General Attorney), GS-14, in the Agency’s Office of Inspector General,
Office of Investigations at the Mary E. Switzer Building in Washington, D.C.

On March 19, 2015, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of his sex
(male), religion (Jewish), and age (59) when:

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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1. Complainant received repeated demands for additional information about his
confidential financial disclosure form (Form OGE 450) (May 2014 to September
2014);

2. Complainant’s duties were removed and his office was relocated to a windowless office
in a different building with no telephone or printer and he was ordered to provide the
demanded personal financial information;

3. Complainant was reassigned from the position of Director for Exclusions for the
Western United States to the position of Director for Exclusions for the Eastern United
States;

4. Complainant was issued a Letter of Caution; and

5. Complainant’s February 2014 performance rating was downgraded from
“Outstanding” to “Excellent.”

At the conclusion of the investigation, 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). Complainant timely requested a hearing,
but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).

The Agency stated that claims (1), (2), and (5) were untimely because Complainant did not initiate
contact with an EEO Counselor until January 22, 2015. The Agency analyzed these claims in its
final decision only in the framework of a hostile work environment. Claims (3) and (4) were
analyzed under both disparate treatment and hostile work environment theories. The Agency
determined that Complainant failed to prove that it subjected him to discrimination as alleged. The
Agency stated that Complainant acknowledged on his OGE Form 450 Confidential Financial
Disclosure Report that he has reportable assets or sources of income through various investments
in stocks/bonds/mutual funds and that he has a reportable outside position as a Board Member of
the National Capital Radio & Television Museum. The Agency stated as to the performance rating
at issue in claim (5) that Complainant was rated as “Excellent” for four critical elements
(Achieving Results, Written and Oral Communication, Leading Others and Investing Resources).
The Agency stated that Complainant was rated as “Outstanding” for the critical element of Critical
Thinking and “Fully Successful” for the critical element of Collaborating with Others. The
Agency noted that for this latter element, Complainant’s first-line supervisor stated that he had
received a telephone call from the U.S. Attorney’s Office informing him that Complainant had
been less than collaborative concerning an exclusion matter at trial.

The Agency determined that Complainant did not set forth a prima facie case under the alleged
bases with regard to claim (3). Assuming arguendo Complainant had established a prima facie
case, the Agency explained that Complainant was reassigned to be Director of Exclusions for the
Eastern United States as a form of realignment.
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According to the Complainant’s Supervisor (S1), the realignment of first-line supervisors was a
method for bringing parity between the two staffs and done to help bring the staff units closer to
alignment. Complainant’s second-line supervisor (S2) stated that he suggested to S1 the switch of
responsibilities and team members because the change would allow for growth and organizational
knowledge for the supervisors and teams. The Agency determined that management had presented
a legitimate, nondiscriminatory explanation for its action.

The Agency stated that Complainant attempted to establish pretext by arguing that the realignment
was an unwarranted intrusion into his personal financial holdings and was related to him being an
older Jewish male. The Agency pointed out that the other first-line supervisor in the switch stated
that he and Complainant had almost identical positions. The Agency determined that there is no
evidence of unlawful motivation by management.

With respect to claim (4), the Agency determined that Complainant failed to establish a prima facie
case under the alleged bases. Assuming arguendo Complainant had set forth a prima facie case,
the Agency stated that S1 and S2 maintained that OGE Form 450 is a financial disclosure form
required by law and assigned to certain designated positions, including Complainant’s attorney
position. According to S2, the annual submission of OGE Form 450 is to ensure that employees
do not inadvertently work on an Office of Inspector General matter where they could have a
financial conflict of interest that would raise impartiality concerns. The Agency noted that S1 and
S2 asserted that Complainant’s initial OGE Form 450 submission was lacking sufficient
information to determine whether a conflict of interest existed. The Agency maintained that
Complainant did not fully or satisfactorily comply with management’s request for more
information, nor did he provide the information in the requested timeframe. S1 asserted that the
Letter of Caution was issued to identify concerns related to OGE Form 450 determinations in
addition to expressing the expectation that a similar issue would be avoided in the future. Further,
S1 stated that Complainant demonstrated behavior that was less than professional. The Agency
determined that Complainant failed to establish pretext. The Agency noted that Complainant
claimed that the events cited in the Letter of Caution were erroneously depicted. However, the
Agency stated that there are several emails pertaining to Complainant’s failure to fully and timely
respond to requests for additional information concerning OGE Form 450.

With respect to Complainant’s hostile work environment claim, the Agency determined that even
if the alleged conduct was true, when considered cumulatively, it was not so severe or pervasive
to constitute a hostile work environment. The Agency stated that management officials were
performing their duties by ensuring that the OGE Form 450 was correctly submitted so that the
Agency could avoid any potential conflicts of interest arising from Complainant’s financial
investments. According to the Agency, management afforded Complainant many opportunities to
submit his OGE Form 450, and when their efforts failed to result in a satisfactorily submitted form,
they took progressive steps to ensure enough information was acquired to determine whether a
conflict of interest existed. The Agency asserted that management moved Complainant to a
different office and removed his Exclusions duties to not only ensure that a conflict of interest did
not exist, but also so that Complainant could be focused on submitting the requested information.
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As for Complainant’s performance rating of “Excellent,” the Agency stated that the evidence
indicates that management rated Complainant solely on his performance.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S2 took an instant dislike to him and never missed an
opportunity to criticize him in front of others or downgrade his performance. Complainant
maintains that S1 has followed S2’s lead and now treats him poorly. According to Complainant,
his performance rating was downgraded because someone allegedly complained to S2 about him,
but he was never afforded the chance to respond, and was not told about the alleged complaint
until he received his performance rating. Complainant claims that S2 repeatedly demanded further
confidential financial information which had nothing to do with his duties and responsibilities, and
was well beyond the scope of the OGE Form 450. Complainant argues that although he had filed
a recusal from pharmaceutical matters, S2 demanded additional information about the value of his
pharmaceutical holdings.

With regard to claim (2), Complainant states that on August 19, 2014, he was removed from his
office without cause or due process, all of his duties were taken away, and he was threatened with
adverse action. Complainant states that he was transferred to a windowless office in a different
building with no telephone or printer, and was ordered to provide the demanded personal financial
information. Complainant maintains that he was subsequently moved to an office with windows,
but still no functional phone or printer. Complainant claims that he remained there through the
end of September, and was responding promptly to each request for more of his personal financial
information. As for his reassignment, Complainant argues that S1 and S2 knew he had financial
holdings in Maryland and that the reassignment would cause him financial harm because he would
need to divest himself of those holdings.

ANALYSIS AND FINDINGS

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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency 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
Prods., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex.
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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).

With regard to claims (3) and (4) under a disparate treatment framework, we shall assume that
Complainant set forth a prima facie case under the alleged bases. The Agency asserted with respect
to claim (3) that the realignment of first-line supervisors was a method for bringing parity between
the two staffs and done to help bring the staff units closer to alignment. S2 stated that he suggested
the switch of responsibilities and team members to S1 because the change would allow for growth
and organizational knowledge for the supervisors and teams. In terms of claim (4), the Agency
noted that S1 and S2 asserted that Complainant’s initial OGE Form 450 submission was lacking
sufficient information to determine whether a conflict of interest existed. The Agency maintained
that Complainant did not fully or satisfactorily comply with management’s request for more
information, nor did he provide the information in the requested timeframe. S1 asserted that the
Letter of Caution was issued to identify concerns related to OGE-450 determinations in addition
to expressing the expectation that a similar issue would be avoided in the future. Further, S1 stated
that Complainant expressed behavior that was less than professional. We find that the Agency
presented legitimate, nondiscriminatory reasons for the actions it took as alleged in claims (3) and
(4).

Complainant attempts to establish pretext as to claim (3) by contending that S1 and S2 knew he
had financial holdings in Maryland and that the reassignment would cause him financial harm
because he would need to divest himself of those holdings. With respect to claim (4), Complainant
argues that the events described in the Letter of Caution were erroneously depicted. We observe
with regard to Complainant’s reassignment that the evidence does not support Complainant’s
claim that the realignment was attributable to discriminatory motivation. According to S1, the
reassignment of management responsibilities was an exchange between the two first-line
supervisors who were equal in grade. S1 stated that the reason for the exchange was the issue of
parity between the two groups. S2 stated that Complainant was able to be recused from working
on anything related to his holdings in Maryland. According to S2, as one of the two first-line
supervisors within the Exclusions Branch, Complainant sometimes acts for the other first-line
supervisor and provides management direction on exclusion issues nationally, thus his duties
always encompassed Maryland. We find that Complainant has failed to establish discrimination
as to claim (3).

With regard to the Letter of Caution at issue in claim (4), Complainant disputed that he acted in an
unprofessional manner and he maintained that he acted promptly in response to the Agency’s
requests for additional financial information. Complainant stated that all of his financial holdings
had been listed in each OGE Form 450 he had filed since 2010. Complainant further stated that
his geographical responsibilities at the time did not extend to Maryland. We find that although
Complainant evidently received more extensive inquiries about his financial holdings than he had
in the past, this was done pursuant to the Agency’s requirement to ensure that no conflicts of
interest existed that would raise impartiality concerns.
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We are not persuaded that the issuance of the Letter of Caution was attributable to discriminatory
motivation as the evidence indicates that Complainant was resistant at times to providing all of the
information that the Agency deemed necessary to ensure that no conflict of interest existed.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the
basis of discriminatory animus. Complainant failed to carry this burden. Upon review of the
record, we find insufficient evidence to establish that the Agency was motivated by discriminatory
animus and that Complainant has not shown the Agency’s reasons for its actions to be pretext for
discrimination.

Hostile Work Environment

Complainant claims that he was subjected to harassment by management officials. To establish
this claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on his statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it
is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Complainant has failed to establish that the Agency’s stated reasons with regard to each of the
incidents at issue, also including those discussed earlier in our analysis (claims (3) and (4)), were
pretext intended to hide discriminatory motivation based on Complainant’s sex, religion, or age.
The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding
of a hostile work environment is precluded by our determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

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CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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 25, 2018
Date