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

Equal Employment Opportunity Commission

May 3, 2018

0120161436 (E.E.O.C. May. 3, 2018)

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

Idell M.,1
Complainant,

v.

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

Appeal No. 0120161436

Hearing No. 560-2014-00213X

Agency No. HHS-IHS-0330-2013

DECISION

Complainant filed an appeal from an Agency’s final order dated March 9, 2016, finding no
discrimination regarding her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed at the Agency as
a Diagnostic Radiologic Technologist, GS-0647-08, at Lawton Indian Hospital, Lawton,
Oklahoma. On August 7, 2013, Complainant filed her complaint alleging discrimination based
on race (Native American), color (brown), national origin (Kiowa Tribe of Oklahoma), and in
reprisal for prior EEO activity when she was subjected to harassment in that on July 2, 2013, she
was removed from her position as a Diagnostic Radiologist Technologist, GS-0647-08, during
her probationary period. The record indicates that at the conclusion of the investigation,
Complainant requested an Equal Employment Opportunity Commission Administrative Judge

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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(AJ) hearing. On January 20, 2016, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the Agency in its final order. Complainant does not
file an appeal brief.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency had articulated legitimate, nondiscriminatory
reasons for the termination at issue. The AJ noted that in August 2011, Complainant was hired
as a contract employee at the Lawton Indian Hospital, Lawton, Oklahoma, and was moved into a
permanent position, subject to a two-year probationary period, as a Diagnostic Radiologist
Technologist on April 7, 2013. The AJ also noted the fact that it was Complainant’s supervisor
(S1) who hired Complainant in 2011, and renewed her one year contract for a second time in
2012, and hired her for her permanent position in 2013.

S1 indicated that on July 2, 2013, he removed Complainant from her position due to her
discourteous conduct towards her coworkers on May 16, 2013, and on June 20, 2013. The AJ
stated that on May 16, 2013, while Complainant was working with her coworkers, she called two
coworkers (C1, C2) “Mutt and Jeff,” made inappropriate comments in front of the patient,
belittled C1, and laughed at her coworkers. C1 testified that she did not want to go to work
because Complainant picked on her and belittled her.

The AJ indicated that on June 20, 2013, Complainant, rather than helping C2, who accidently
deleted the exam from the computer system, was relentless, laughing, snickering, saying “you
are in trouble now,” and embarrassed her in front of patients. C2 testified that Complainant was
unkind, cruel, a bully, and would not stop when she asked her to do so. The AJ indicated that
Complainant called C2 a “dumbass.”

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S1 stated that she received C2’s June 21, 2013 complaint wherein C2 complained about
Complainant’s inappropriate behavior described above and C2 being forced to leave work early
and take leave due to a “toxic” environment created by Complainant. C2 requested to change her
work hours to avoid Complainant. S1 changed C2’s work schedule as requested.

The AJ stated that S1, after receiving C2’s June 21, 2013 complaint, spoke with an Employee
Relations Specialist who advised S1 to obtain statements from coworkers and then have
Complainant respond to the coworkers’ statements, which S1 did. When S1 asked Complainant
for her statement, Complainant told S1, “it is fucking stupid,” and did not submit the requested
statement. On July 2, 2013, after consulting with the Employee Relations Specialist, S1 decided
to terminate Complainant during her probationary period due to her unprofessional behavior
toward her coworkers, described above.

The AJ indicated that Complainant claimed that S1 (also Native American, Mississippi Choctaw
Tribe) referred to her as the “Indian girl” or made other derogatory comments about Native
Americans. The AJ indicated that S1 denied making those comments, no employee witnessed
such, and Complainant never complained about those at the relevant time period. Even if the
incidents did occur, stated the AJ, they did not rise to the level of severe or pervasive conduct to
alter the conditions of Complainant’s employment such as to state a claim of harassment.

After a review of the record, we find that Complainant failed to show that there were any
similarly situated employees not in her protected groups who were treated differently under
similar circumstances. The AJ stated and we agree that Complainant failed to prove that the
Agency’s proffered reasons were pretextual. Upon review, we find that the AJ’s factual findings
of no discriminatory intent are supported by substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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.
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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.

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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

May 3, 2018
Date