0120161309
06-12-2018
Hester S.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hester S.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120161309
Hearing No. 531-2015-00213X
Agency No. HHSNIH00242011
DECISION
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 November 2, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant was discriminated against based on her national origin (Italian) and/or reprisal (prior EEO Activity) when the Agency allegedly misrepresented her education, training, or experience when completing her Physician Comparability Allowance (PCA) renewal by indicating that she was an Oncologist rather than a Public Health Prevention Physician.
BACKGROUND
Complainant worked as a Medical Officer, GS-602-14, at the Agency's National Institutes of Health, National Cancer Institute (NCI) Nutritional Science Research Group (NSRG) in Bethesda, Maryland. On November 30, 2010, Complainant filed an EEO Complaint alleging that the Agency discriminated against her as indicated above. Complainant's first level supervisor was S-1, (American), no prior EEO activity, Chief, NIH, NCI, NSRG. Complainant's second level Supervisor was S-2, (American), no prior EEO activity, Associate Director for Prevention, NIH, NCI. E-1 (American), no prior EEO activity, was the Manager, Administrative Service Center, Division of Cancer Prevention, and E-2, national origin (unknown), prior EEO activity (unknown), was the Director, NIH, NCI in 2010.
On August 12, 2010, Complainant learned that S-1 and S-2 wrote a justification for her 2010 - 2012 PCA. Although she signed the justification, Complainant states that the justification inaccurately portrayed her as being a Medical Oncologist. She stated that she was not a Medical Oncologist. An Oncologist provides treatment for individual cancer patients. Complainant provided treatment for rheumatic autoimmune diseases and musculoskeletal diseases. She believed that the description of her duties provided by S-1 and S-2 was a deliberate destruction of her professional identity and contributed to significant change in her employment status.
E-1 stated that the purpose of the PCA was to retain physicians who are typically hard to hire, based upon salary issues. She stated that all Medical Officers employed in the NSRG, including Complainant, receive a PCA. Complainant signed the PCA in order to remain in her positon for two years. E-1 stated that PCA renewal justifications were used exclusively for the renewal process and no other personnel actions.
S-1 stated that the PCA was a special compensation designed to recruit individuals with medical training to NIH. He stated that he personalized Complainant's justification because she was a Medical Officer in the Nutrition Group, not because he was trying to make it appear that she trained in medical oncology. He also noted that Complainant never indicated to him that the information on the justification was incorrect. He denied discriminating against Complainant. S-2 indicated that S1 wrote the justification for Complainant and that he merely approved it.
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 but the AJ denied the hearing request. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant presents no new contentions on Appeal.2
STANDARD OF REVIEW
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, at Chapter 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").
ANALYSIS AND FINDINGS
Disparate Treatment and Reprisal
Claims of disparate treatment and/or reprisal based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin and/or reprisal for prior EEO activity, the Agency has articulated legitimate, non-discriminatory reasons for its actions. S-1 wrote that he personalized Complainant's justification because she was a Medical Officer in the Nutrition Group. He also stated that Complainant never brought her concerns to his attention.
The burden shifts back to Complainant to prove by a preponderance of the evidence, that the reasons provided by the Agency were a pretext for discrimination. We find that Complainant failed to provide persuasive evidence that would lead a factfinder to conclude that the reasons given by the Agency are pretext for discrimination based on her national origin or previous EEO activity. Notwithstanding the fact that S-1 provided the wrong information on the justification, there is simply no evidence that his error was based on discriminatory animus against Complainant.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's FAD.
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.
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
_6/12/18_________________
Date
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.
2 In a letter dated October 5, 2015, Complainant requested an extension until October 9, 2015 to file a supporting statement for her appeal. Notwithstanding the fact that the Agency's final decision was not issued until November 2, 2015, we find no evidence that Complainant ever filed a supporting statement.
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