Janay H.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120172158 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janay H.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency. Appeal No. 0120172158 Agency No. HHS-CMS-0395-2016 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 May 24, 2017 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Health Insurance Specialist, GS-0107-12 at the Agency’s Division of State Technical Assistance (DSTA) in Bethesda, Maryland. Her position was located within the Center for Consumer Information and Insurance Oversight (CCIIO). On October 25, 2016, she filed an EEO complaint in which she alleged that her first-line supervisor, the DSTA Director, and other management officials discriminated against her on the bases of race (African-American), national origin (American), sex (female), color (Black), age (41) 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. 0120172158 2 1. On July 18, 2016, the DSTA Director issued Complainant a mid-year 2016 Performance Management Appraisal Program (PMAP) progress review that contained what Complainant characterized as negative narrative comments; and 2. On an unspecified date in August or September 2016, the DSTA Director directed Complainant to no longer work on the State-Based Marketplaces (SBM) Issuer/Qualified Health Plans (QHP) Landscape Report for FY 2017 (hereinafter referred to as the SBM report).2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 25, 2017, Complainant requested a final decision without a hearing. In accordance with Complainant’s request, the Agency issued its 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. On July 18, 2016, in accordance with the PMAP, the DSTA Director issued Complainant her mid- year progress review for the 2016 performance cycle. Complainant identified the following comments in her performance narrative as negative: Element 1: • Showed improvement in her awareness of agency policy and State Exchange Group (SEG) policy around telework responsibilities and requirements. Element 2: • Relied heavily on management direction and coaching before taking action. • Demonstrated difficulty in grasping basic comprehension of most assignments. • Relies heavily on contractor resources. • Shown very limited amplitude to learn and obtain knowledge in her assigned subject matter area of plan management and how it relates to oversight for states. • Demonstrates an inability to listen to instructions and organize information that is communicated to her which results in ineffective follow through and completion of her assignments. 2 For the second allegation, Complainant added reprisal as a basis, identifying the instant complaint as the protected EEO activity. 0120172158 3 Element 3: • Shown very limited aptitude to learn her role as the SEG TA for plan management and how it relates in support provided to SBMs/SBM-Federal Platforms (FPs). • Demonstrates difficulty trouble shooting when problems arise, difficulty learning her subject area beyond a superficial level, and using critical thinking skills to help management in tackling issues. • Demonstrates an inability to actively listen to instructions and retain and organize information. Element 4: • Difficulty with her verbal communication and presentation skills in terms of how she articulates information that she is sharing or presenting. Peers and managers have often had difficulty understanding or following her verbal communications. • Continues to demonstrate low comprehension of her subject matter as it relates to SBMs and SBM-FPs. • Needs to improve her written communications skills to produce quality work products that presents information in a synthesized and coherent manner. IR 102-103, 177-81. The DSTA Director averred that the feedback she provided was not meant to be negative, but to identify and clarify those aspects of her performance that Complainant needed to improve. IR 119. Regarding Element (2), the DSTA Director stated that she had directed Complainant to consult with the contractors who provided support services to the organization, but instead of exercising independent judgment, she came to rely on the contractors to direct her work. IR 120-21. As to Element (3), the DSTA Director affirmed that Complainant had demonstrated her inability to grasp the policies and processes the division was charged with implementing or to communicate with the Agency’s state-based marketplace partners regarding certification and plan management. IR 121-22. Concerning Element (4), the DSTA Director had expressed concern regarding Complainant’s difficulties with both verbal and written communication and her tendency to bring random off-topic information into meetings and conferences. IR 122. Further the DSTA Director stressed that when she attempted to explain to Complainant the feedback she had given her, Complainant became upset and defensive. IR 122- 23. The Deputy DSTA Director also provided an affidavit attesting to Complainant’s performance issues and to Complainant’s negative reaction as the DSTA Director tried to explain the performance narrative to her. IR 145-48. 0120172158 4 Complainant alleged that on an unspecified date during August or September 2016, the DSTA Director ordered her to stop working on the SBM report. Her primary task while involved with this project was to collect states’ health plan data that would be used to track and monitor the activities of health insurance issuers. She acknowledged that the project was not part of her regular duties. When asked to describe the circumstances under which this project was taken away from her, Complainant replied that during a one-on-one meeting, the DSTA Director informed her that she did not want her to enter anymore information into the SBM report or otherwise update it any further. She opined that the DSTA Director did not view the report as valuable or that she, Complainant, was not diligently working on it. IR 110-12. The DSTA Director confirmed that she assigned Complainant the task of working on the SBM report, that Complainant was expected to coordinate and reach out to each state officer to ensure that she was getting updated information, and that she took Complainant off the project once all of the data entries for Fiscal Year 2017 had been completed. IR 124-25, 127. The Acting Deputy CCIIO Director averred that the DSTA Director had told Complainant to hold off because Complainant had not been populating the chart quickly enough and that some of the information that Complainant had entered was incorrect. IR 155-56. When asked by the EEO investigator whether she could name any witnesses who had first-hand knowledge of the incident, Complainant replied that she did not. IR 114. CONTENTIONS ON APPEAL On appeal, Complainant contends that she was the only employee who received a mid-year progress review with all negative comments, erroneous statements, and exclusion of accomplishments. Complainant argues that the DSTA Director had a negative demeanor toward her and that she made demeaning comments about her. Complainant disputes the management officials’ statements about her performance and reasons for asking her to not work on the SBM report. Accordingly, Complainant requests that the Commission reverse the final decision. 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, 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 lawâ€). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 0120172158 5 As a first step, she would normally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the DSTA Director articulated legitimate and nondiscriminatory reasons for both of its actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding the progress review, the DSTA Director stated that her comments reflected her assessment of where Complainant’s performance was in terms of the elements of her PMAP plan, and that they were in no way intended to be negative, but rather were necessary to point out to Complainant areas where her performance needed improvement. As to the SBM report, the reasons given by the DSTA Director and the Acting Deputy Director were that the time frame for entering data into the FY 2017 SBM report had come to an end, and that Complainant’s data entries were incomplete and sometimes incorrect. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). When asked by the EEO Investigator why she believed her race, color, national origin, sex, and age were factors in the DSTA Director’s narrative comments in her mid-year PMAP progress review, Complainant replied that the DSTA Director did not treat any other employee the same way that she treated her, and described conduct on the part of the DSTA Director such as not sitting near her during a conference and a hearsay statement from a colleague that black female employees were fired by the DSTA Director before she arrived. She admitted, however, that she did not know whether her age was a factor. IR 107- 09. When asked the same question regarding the SMB report, Complainant responded with the same answer: that the DSTA Director did not treat any other employee the way she treated her, and that black female employees have had problems working under the DSTA Director. IR 112- 13. When asked why she thought that the DSTA Director had retaliated against her for filing the instant complaint, Complainant stated that the SMB report was part of a larger pattern of work being shifted away from her. She averred that the actions of the DSTA Director could have been retaliation for filing her complaint or could have reflected the DSTA Director’s frustration that it was taking so long to gather the information for the SMB report. IR 113. Beyond these bare and conclusory assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict the explanations provided by the DSTA Director and corroborated by the Deputy DSTA Director and the Acting Deputy CCIIO Director, or which challenge or otherwise call into question the veracity of any of these management officials. She has therefore not shown that the explanations provided by the management officials were a pretext for discrimination on any named basis. We therefore agree with the Agency that Complainant has not presented enough evidence to establish the existence of a discriminatory or retaliatory motive on the part of any management official in connection with either of the incidents comprising her complaint. 0120172158 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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. 0120172158 7 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 16, 2018 Date Copy with citationCopy as parenthetical citation