Hortencia R.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120172550 (E.E.O.C. Nov. 6, 2018)

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

Hortencia R.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120172550

Hearing No. 443-207-00023X

Agency No. HHS-HIS-00302016

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Administrative Judge’s
Order, dated April 19, 2017, and the Agency’s subsequent final decision dated, June 24, 2017,
concerning an equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Licensed Practical Nurse, GS 6, at the
Agency’s Acute-Care Department at the Pine Ridge Hospital in Pine Ridge, South Dakota.

On November 6, 2015, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.

On February 5, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on age (born 1961) 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 was directed to complete the Advanced Cardiac Life Support
(“ACLS”) and the Pediatric Advanced Life Support (“PALS”) training, which had
not been required previously. Complainant completed the training as directed on
August 27, 2014, February 8, 2015,2 respectively.

2. On or about November 5, 2015, Complainant was not given a raise after duties
had been added to her position description, on May 1, 2015, without her
notification.

As a preliminary matter, we find it necessary to address the extensive procedural history of this
case, which was compounded by considerable confusion, discussed further below.

The Agency initially dismissed Complainant’s formal complaint on March 8, 2016 on the ground
that it was untimely filed. Complainant’s appeal to the Commission followed. On June 24,
2016, the Commission reversed the Agency’s dismissal and remanded the case to the Agency for
further processing. Complainant v. Department of Health and Human Services, EEOC Appeal
No. 0120161496 (June 24, 2016).

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. On November
4, 2016, Complainant requested a hearing before an AJ. On March 24, 2017, the Agency issued
a Combined Motion to Dismiss and a Motion for Decision Without a Hearing. The Agency
asserted that the formal complaint should be dismissed for untimely EEO Counselor contact.
The Agency further argued that the undisputed evidence did not support a finding of
discrimination and a decision could be issued on the record.

On April 19, 2017, the AJ issued a Final Order. In the body of the Order, the AJ determined that
EEO Counselor contact was untimely. The AJ also dismissed Complainant’s hearing request as
untimely and remanded the case to the Agency for an Agency final decision. The AJ, however,
also instructed the Agency to “issue a final order notifying the Complainant whether [the
Agency] will fully implement [the AJ’s order] (emphasis added)” in the Notice to the Parties
attached to the AJ’s Order.

On April 19, 2017, the Agency contacted the AJ, by email, for guidance regarding its perception
of conflicting instructions stated in the AJ’s Order, as noted above. The AJ responded by email
on April 19, 2017 that “[t]he Order should be interpreted as a final order under 29 C.F.R. §
1614.110(a).”

2 The PALS certification certificate indicates that Complainant completed this training on April
3, 2015.

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Nevertheless, on June 24, 2017, the Agency issued the instant final decision on the merits,3
finding no discrimination.

On August 18, 2017,4 the Agency notified Complainant by letter that it had rescinded its June
24, 2017 final agency decision. The Agency explained in the letter that “the AJ’s Order Entering
Judgment has become final as a matter of law.”

The instant appeal from Complainant followed.

In response, the Agency requests, on appeal, that the Commission uphold the AJ’s finding and
dismiss Complainant’s complaint for untimely EEO Counselor contact. The Agency further
requests that in the event the Commission addresses the merits of the complaint; the Commission
should find that the Agency did not subject Complainant to age discrimination.

ANALYSIS AND FINDINGS

EEO Counselor Contact

The AJ properly dismissed Complainant’s complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a
Complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.

Here, Complainant stated in her affidavit that she was allegedly “threatened” in March 2015
“with the charge of insubordination if [she] failed to take a skills-check-off on the PALS
certification.” The record indicates that Complainant’s supervisor reminded Complainant on
February 25, 2015 and March 26, 2015 to complete PALS training and Complainant completed
both trainings on August 27, 2014 and April 3, 2015. The record also indicates that
Complainant’s supervisor emailed Complainant a copy of the revised Practical Nurse position
description on May 1, 2015.

3 The Agency explained that “claims 1 and 2 should have been dismissed for untimely EEO
Counselor contact prior to acceptance pursuant to 29 C.F.R. § 1614.107. However, in order to
provide Complainant with an opportunity to make her case, the decision proceeds under the
assumption that these claims are, in fact, timely.”

4 The letter is incorrectly dated “April” 18, 2017. However, the certification of service for this
letter indicates that it was mailed on August 18, 2017.
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The email explained that the Practical Nurse position description underwent classification in
October 2015, without any changes reflected in the grade level. The revised Practical Nurse
position description included new requirements for Complainant to complete ACLS and PALS
training. Complainant stated in her affidavit that she became aware of the changes reflected in
her position description in May 2015. Therefore, Complainant had constructive knowledge of
changes to her position description as early as May 1, 2015. Complainant, however, waited six
months to initiate EEO Counselor contact on November 6, 2015. Thus, Complainant initiated
EEO contact well beyond the 45-day limitation period.

We note that Complainant emailed her supervisor on November 4, 2015 to inquire whether
Complainant would receive a grade increase considering the new training requirements.
However, Complainant’s supervisor had already explained, in the May 1, 2015 email, that there
were no grade changes reflected in the revised Practical Nurse position description. Therefore,
the information Complainant would have received in response to her November 4, 2015 inquiry
would not have differed from the information she received initially on May 1, 2015.

Complainant has not presented any persuasive arguments or evidence warranting an extension of
the time limit for initiating EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2). Therefore, the
AJ properly dismissed Complainant’s formal complaint for untimely EEO Counselor contact.

Disparate Treatment

To the extent that we were to entertain the merits of this case, we find that Complainant would
not have prevailed on the merits even if she had timely initiated EEO Counselor contact.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Acute
Care Supervisor (“S1”) (YOB: 1954) stated, regarding claim 1, that the Director of Nursing
(“Director”) (YOB: 1975) issued a memorandum requiring all nursing personnel to become
ACLS and PALS certified. S1 further stated that and email was sent to “all nursing staff,” and
no registered nurses were excluded from this requirement. S1 further explained that the required
skills from the ACLS and PALS training were within the scope of Complainant’s practice and
the trainings ensured that Complainant had knowledge of the procedures.

The Director stated that she issued the email regarding the new training requirement to staff on
September 2, 2014. The Director further stated that the trainings were issued to all nursing staff
regardless of age and the trainings were required for “any nurse proving direct patient care.” The
Director explained that Complainant provided direct patient care because her position involved
monitoring patients. The Director further explained that Complainant is “the only LPN who
meets the direct-patient-service criterion for these requirements.”

The record contains a copy of Complainant’s revised Practical Nurse position description which
states, in pertinent part, that LPNs “[p]rovide direct care as a licensed practical nurse in
assessing, planning, implementing, and evaluating care for patients in the Acute Care
department.”

The record also contains a copy of the Director’s September 2, 2014 email informing the
supervisors that “[a]ll [registered nurse] and LPN position descriptions need to state that BLS,
ACLS, [and] PALS [training certifications] are required.”

The record includes a copy of the Agency’s nursing staff personnel list for fiscal year 2015 as
well as the Agency’s organizational chart indicating that Complainant was the only the Practical
Nurse at the Agency.

Copies of Complainant’s ACLS and PALS certificates indicate that Complainant completed
these trainings on August 27, 2014 and April 3, 2015.

Regarding claim 2, S1 explained that she forwarded Complainant’s pay increase request to the
Director. S1 stated that the Director explained that “fulfilling new educational requirements did
not warrant an increase in pay.” S1 stated that no other employee received an increase for
completing the training courses at issue. S1 further explained that Complainant is at her highest
paygrade for an LPN, and Complainant cannot receive a pay increase while hired in this position.
S1 stated that Complainant would have to become a registered nurse to earn more money.

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The Director explained that Complainant’s position description was reclassified in October 2014
and the additional certification requirements did not warrant a pay increase. The Director further
explained that the Office of Personnel Management sets the wages for career series/grade/step,
and she does not have the authority to alter Complainant’s payment. The Director further stated
that Complainant “is at the maximum grade and step compensation levels for an LPN.”

The record contains a copy of Practical Nurse position descriptions classified in March 2010 and
October 2014. Both position descriptions classify the Practical Nurse position at a GS 6 even
though the October 2014 position description includes the requirement that all LPNs “maintain
BLS, ACLS, PALS, and other certifications.”

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her age.

Accordingly, we AFFIRM the Administrative Judge’s Order Entering Judgement dismissing the
complaint for untimely EEO Counselor contact.

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.
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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

November 6, 2018
Date