Herman P.,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

Jul 20, 2018

0120161865 (E.E.O.C. Jul. 20, 2018)

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

Herman P.,1
Complainant,

v.

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

Appeal No. 0120161865

Agency No. HHS-CDC-0296-2014

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 7, 2016, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Public Health Analyst (Policy)/Assistant Director for Policy and Program Planning, GS-14,
Division of Viral Hepatitis (DVH), Centers of Disease Control and Prevention in Atlanta,
Georgia. On September 15, 2014, Complainant filed his complaint, which was later amended,
alleging that:

He was discriminated against based on disability 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) On May 8, 2014, management informed him that his position was being upgraded to a
GS-15, that would not be announced and for which he would not be allowed to apply.

(2) On May 8, 2014, management notified him that he was being removed from his position
and assigned lesser job duties.

He was discriminated against in reprisal for prior EEO activity when:

(3) On January 26, 2015, he received a rating of 3.2 on his 2014 performance evaluation.

After completion of the investigation of the complaint, Complainant did not request a hearing
before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision
concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant claimed that he had major depressive disorder
which was first diagnosed in 1990. Complainant indicated that he had worked as an Assistant
Director for Policy and Program Planning, GS-14 since 2001, serving as the principal Policy
Officer for DVH. Complainant claimed that although the Policy Officers of other divisions
typically were GS-15s, he remained at the GS-14 level. Complainant stated that under his
psychiatrist’s recommendation, he requested and was granted leave from April 23 to May 28,
2014. He indicated that he did not require any accommodation for his disability in order to
perform his position duties.

Regarding claims (1) and (2), management indicated that at the relevant time, they were aware
that Complainant’s work performance occasionally had timeliness issues since he was assigned
to a large volume of work. Thus, management was required to request and receive some staff
assistance outside of DVH since 2011, on an annual contract basis. In April 2014, for the first
time in many years, DVH received a budget increase to hire additional employees.
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Management indicated that at that time, a Commissioned Corps Officer/Captain (SS1), who
previously worked in viral hepatitis, expressed her interest in coming to DVH via a lateral
transfer. Considering the fact that the office had a staff shortage and Complainant’s four-week
leave caused even more work backlog, management approved SS1’s lateral transfer request. SS1
transferred to DVH in June 2014, at her then service rank of O-5, and not at a GS-15 or any other
Civil Service position grade.

S1 (Complainant’s first level supervisor) noted that on May 8, 2014, when he called
Complainant, during his leave, out of courtesy to explain SS1’s coming to DVH, Complainant
was very angry and told him twice “I wish you were dead!” and he felt threatened. On June 2,
2014, upon Complainant’s return to work, S1 stated that S1 and Complainant’s second level
supervisor (S2), including Complainant, met and during the meeting, Complainant reiterated his
threats against S1 and also threatened S2.

S2 indicated that after SS1’s transfer, SS1 took the lead role attending the senior staff meetings
and in interacting with community partners with the exception of the community-based hepatitis
organizations with which Complainant continued to take the leading role. Other than the
foregoing, there was no major change in Complainant’s job duties. Specifically, S2 stated that
much of SS1’s workload consisted of new work DVH had been unable to perform previously or
work he himself had performed due to staff shortage. The record indicates that Complainant’s
formal position title was a Public Health Analyst (Policy), GS-14, since 2001, and the title
remained the same on October 5, 2014.

Regarding claim (3), SS1 stated she gave Complainant his appraisal for the period from January
1, 2014, to December 31, 2014, with the summary rating of Level 3.2, “Achieved Expected
Results” (i.e., the highest summary rating was Level 5, “Achieved Outstanding Results” and the
lowest summary rating was Level 1, “Achieved Unsatisfactory Results”). SS1 stated that she
took into consideration the work Complainant accomplished since mid-June 2014, to the first
part of 2015, and S1’s input for his performance from January to June 2014. SS1 stated that
during his 2014 appraisal period, Complainant failed to complete assignments in a timely manner
and failed to provide her with updates, particularly when he was not going to meet expected
deadlines. SS1 stated that when she asked Complainant about an assignment, he would tell her
“I forgot,” “I had questions about the assignment,” “I didn’t know what you wanted me to do,”
and other reasons. SS1 also stated that Complainant would tell SS1 that he was overwhelmed and
was unable to take on any additional tasks.

Specifically, SS1 indicated that Complainant failed to follow up with the “ORISE Fellow”
promptly concerning that person’s emails and scheduling meetings and failed to give the Agency
Foundation Field Staff member the necessary support. SS1 stated that Complainant had been
very slow in responding to his assignments, failed to coordinate the development of monthly
conference calls with a set of DVH partners by drafting an agenda in a timely manner, did not
perform well during a meeting with an organization, and did not complete his tasks in a timely
manner.

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We do not address in this decision whether Complainant is a qualified individual with a
disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation. We find that Complainant failed to show that he was treated less
favorably than a similarly situated employee under similar circumstances or that the Agency’s
actions were motivated by discrimination. Based on the foregoing, we find that Complainant has
failed to show that the Agency’s action was motivated by discrimination as he alleged.2

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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.

2 We note that on appeal, Complainant raises new matters, i.e., the denial of a desk audit for his
position at the GS-15 level and his being forced to accept a detail to another office, which are not
at issue in this appeal.
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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.

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

July 20, 2018
Date