01973467
01-06-2000
Diana Suvannunt, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration) Agency.
Diana Suvannunt v. Department of Health and Human Services
01973467
January 6, 2000
Diana Suvannunt, )
Complainant, )
) Appeal No. 01973467
v. ) Agency No. FDA-132-94
) EEOC No. 210-95-6286X
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
(Food and Drug Administration) )
Agency. )
)
_______________________________)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
finding no discrimination as to her equal employment opportunity (EEO)
complaint.<1> She raised unlawful employment discrimination on the bases
of her race (Asian), national origin (Chinese), sex (female), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Complainant alleges
she was discriminated against when: (1) she was denied credit hours
and compensatory time; (2) she was denied training; (3) her request
for annual leave in May and April 1993 was denied; (4) a lower graded
employee was assigned to supervise her; (5) her keys were taken and her
telephone was removed; and (6) she was terminated from her position.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
As background information, complainant was employed as a Senior Staff
Fellow, GS-13, at the agency's Center for Food Safety and Applied
Nutrition (CFSAN), in Summit Argo, Illinois. She filed a formal EEO
complaint with the agency on November 26, 1993, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) administrative judge (AJ).
The AJ issued a Recommended Decision (RD) without a hearing, finding
no discrimination. (See, 64 Fed. Reg. 37657 (July 12, 1999) (to be
codified at 29 C.F.R.� 1614.109 (e)(3)).
Administrative Judge's Decision
The AJ concluded that complainant failed to establish a prima facie
case of discrimination because she failed to demonstrate that similarly
situated employees who were not Asian, female, Chinese or who had
not engaged in protected EEO activity, were treated differently under
similar circumstances. More specifically, he concluded complainant
failed to show that any other professional level employees like herself
were granted credit hours, compensatory time, or training at the time
her requests were refused.
The same was true of complainant's contention that a lower graded employee
was made her supervisor because of discrimination. The AJ concluded
that the employee who was put in charge of complainant's work, was also
Asian and that the action occurred prior to complainant's protected
EEO activity. On those bases, complainant failed to establish a prima
facie case. On the bases of national origin and sex, the AJ found an
inference of discrimination but found that complainant ultimately failed
to show the agency's reasons for assigning the employee to supervise
complainant were a pretext for discrimination.
On the issue of the denial of annual leave, the AJ found that although
no other employees were denied annual leave, others at the professional
level, were asked to change their leave schedules to accommodate the
demands of their work. The reason complainant's supervisor (S1) gave
for denying complainant's leave requests was that running the vitamin
tests on the milk samples were more important. This was consistent
with the reasons others not in complainant's protected classes had to
reschedule their leave. Consequently, the AJ found complainant failed
to establish that the agency's reason for its actions was a pretext
for discrimination. In addition, since the denial of leave requests
occurred before complainant had contacted an EEO counselor, there was
no prima facie showing of reprisal.
The AJ found complainant had established a prima facie case of
discrimination on all bases on the question of complainant's keys being
taken and her telephone being removed. This kind of action was not taken
against any other employee at the Laboratory Quality Assurance Branch.
In the AJ's view, however, complainant failed to rebut the agency's
reasons for taking her phone and her keys away and thereby failed to
demonstrate the agency's reasons were pretextual.
Finally, the AJ found that complainant did not raise an inference
of discrimination on the basis of her race, sex or national origin,
when she was terminated. Furthermore, the agency stated legitimate
non-discriminatory reasons why it terminated complainant but complainant
failed to establish, by a preponderance of the evidence, that the agency's
reasons were a pretext.
The AJ found that complainant established a prima facie case of reprisal
because the evidence showed complainant's supervisor was well aware of her
EEO activity when he terminated her employment. In the final analysis,
however, the AJ determined that complainant failed to demonstrate the
agency's reason for terminating her was due to reprisal.
The agency's final decision adopted the AJ's recommended decision.
Appellant's Arguments on Appeal
Complainant contends the AJ erred in granting summary judgment because
there were, in general, questions of fact. Complainant contends
that because no other employee was denied annual leave, a finding of
discrimination should have been made. Complainant cites as error,
the AJ's determination of no discrimination when the agency disapproved
her training but approved another employee's (E1) training. She argues
that E1's failure to attend the training was irrelevant to the fact that
denying her training request was a discriminatory act.
Complainant concludes the AJ's determination of no discrimination in
terminating her employment was inconsistent with its denial of training
for her. That is, if the agency was correct that she did not need
HPLC training because she was already an expert, she could not also be
terminated for incompetence.
Complainant asserts that there were credibility issues to be decided
on the issue of whether E1 should have been assigned to supervise her
work. She argues there was no evidence of the agency's criticisms of
complainant's work which led to E1's assignment to head her project,
only unsupported and incompetent opinions. She concludes that the
only reasonable explanation for the agency's criticisms of her was its
displeasure with her EEO activity.
Lastly, complainant reasons that the only justification for removing
her keys and telephone leading to her termination was her complaints of
discriminatory treatment. Complainant further contends that her contacts
with an upper management employee concerning her desire for a transfer
should be regarded as protected EEO activity. The agency's firing of
her for contacting this employee, in her view, constituted reprisal.
The agency submitted no brief in response to complainant's arguments
on appeal.
ANALYSIS AND FINDINGS
Our review of the agency's final decision based on the AJ's grant of
summary judgment is de novo. 64 Fed. Reg. 37644, 37659 (July 12,
1999)(to be codified at 29 C.F.R. �1614.405(a)). After a careful review
of the record, and based on the reasoning of McDonnell Douglas Corp.v.
Green 411 U.S. 792 (1973) and Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, (1981) the Commission finds that the AJ was
correct in issuing a decision without a hearing finding no discrimination.
We conclude this because complainant failed to establish a prima facie
case of discrimination on some issues and on other issues she failed to
dispute the agency's proferred reasons for the actions it took.
Specifically, complainant admitted being informed in a meeting that no
professional level employees like herself were granted credit hours and
compensatory time. There was no dispute on the record that professional
level employees in her unit were not awarded credit hours or compensatory
time when they worked long hours. Thus, complainant failed to establish
a prima facie case of discrimination on this issue.
S1 raised several reasons for terminating complainant's employment which
remained uncontested on the record. S1 stated that complainant always
called in sick on the days samples were due to be delivered for testing.
He and E1 gave uncontradicted testimony that complainant failed to follow
established agency directives and protocols, failed to order appropriate
amounts of reagents, and failed to store them properly. Furthermore,
both S1 and E1 stated that complainant failed to order amber colored
glass which was required for running the vitamin A testing complainant
was responsible for. S1 stated the lapses in complainant's procedures
raised serious questions about the validity of her test results and
her ability to run the vitamin testing project on her own. This led to
the assignment of E1 who had some background in High Performance Liquid
Chromatograph (HPLC) testing and in performing chemical analyses.
S1 also reasoned that complainant's failure to follow protocols and
to take care in her communications about a national program with those
outside the agency would affect the credibility of the office and the
program. On these points, the record contains no evidence disputing
S1's contentions or challenging his credibility.
On the issue of training, complainant, again, failed to dispute S1's
reasons for denying her request. S1 stated complainant did not need HPLC
testing because it was too basic for her level of expertise. He also
testified that complainant should not have needed HPLC training because
complainant represented that she was knowledgeable about it on her resume.
There was no indication in the record that complainant disputed S1's
assertions.
S1 also offered reasons for denying complainant's request for annual
leave which she did not dispute. S1 stated in his affidavit there was
too much work to be done at the time complainant requested annual leave.
Other employees gave consistent testimony indicating that they had been
asked to reschedule their leave requests, sometimes more than once,
to accommodate their work demands. Complainant failed to address S1's
contentions in her own affidavit and failed to raise other evidence
challenging the credibility of S1's statements.
On the issue of reprisal, complainant established a prima facie case of
reprisal when S1 took her keys, removed her telephone and then terminated
her employment as no other employee had engaged in EEO activity or had
these actions taken against them. The other issues occurred before
complainant had contacted an EEO counselor and therefore, as to those
issues she failed to establish a prima facie case of reprisal.
Even so, complainant failed to establish a sufficient nexus between the
agency's actions and her EEO activity. More importantly, complainant
failed to persuade us that her EEO activity was the real reason for the
agency's actions and not its stated actions. Specifically, complainant
failed to persuasively refute that she did not follow proper procedures
for obtaining a transfer by directly calling the Associate Commissioner
or that she failed to cease calling him once she was asked to stop.
This was but one among the list of other reasons discussed above that the
agency gave for complainant's dismissal, which were largely undisputed.
On each of the issues complainant raised in her complaint, she failed to
address directly the agency's reasons for taking the actions that it did.
As a result, we cannot conclude that the agency's reasons are a pretext
for discrimination or that complainant demonstrated by a preponderance
of the evidence that the agency discriminated against her.
CONCLUSION
Therefore, based on the foregoing and after a review of the entire
record including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in
this decision, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
1/6/00 _____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________
Equal Employment Assistant
__________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.