Diana Suvannunt, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration) Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01973467 (E.E.O.C. Jan. 6, 2000)

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.