0120162693
03-13-2018
Kesha Y.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kesha Y.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120162693
Hearing No. 410-2015-00055X
Agency No. HHSCDC04142013
DECISION
On August 24, 2016, 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 July 20, 2016 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Management Program Analyst in Information Technology Services at an Agency facility in Atlanta, Georgia. Complainant was in a Career Opportunity Training Agreement (COTA) position the Agency placed her in, as a reasonable accommodation, on December 22, 2011.2
On September 12, 2013, Complainant initiated contact with an EEO Counselor alleging that the Agency discriminated against her based on disability (Severe Anxiety with Accompanying Depression) under Section 501 of the Rehabilitation Act of 1973 when:
1. on September 6, 2013, Complainant's Supervisor (S1) denied Complainant sick leave,
2. between October 3, 2012 and August 19, 2013, S1 denied Complainant work assignments and training so that Complainant would fail in her COTA position,
3. S1 placed Complainant on Absent without Leave (AWOL) for 40.05 hours between August 16, 2013 and September 4, 2013, and
4. on July 19, 2013, S1 rated Complainant as "Partially Achieved Expected Results" in a critical performance element, Management and Program Analysis.
On December 11, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability for the incidents alleged in claims (1) through (4) above. The Agency investigated claims (1) through (3).3
Investigation
Agency Response
S1 stated that she became Complainant's supervisor in January 2012. S1 stated that she approved the sick leave request for September 6 verbally. S1 stated that, on September 5, she found Complainant in her office unresponsive and the paramedics were called, but Complainant refused to go to a hospital. S1 stated that she and a coworker transported Complainant home, during which time, Complainant asked to have sick leave for the next day. S1 stated that she agreed and suggested Complainant go to a doctor, but she is uncertain if Complainant did so.
S1 stated that she never denied Complainant training. S1 stated that Complainant's COTA position required training for processing travel requests, training requests, and recruiting actions, and for coordinating telework. S1 stated that all required training was in-house Agency training, but Complainant refused to cooperate to get the training. In addition, S1 stated that Complainant needed to take Microsoft Visio, which was also an in-house training, but Complaint wanted to take the course through a private online company. S1 stated that Complainant delayed taking the course and she is unsure if she ever took it. She stated that Complainant took the in-house courses.
S1 stated that an employee is charged as AWOL if they are absent from work without leave approval from their supervisor. S1 stated that she met with Complainant on March 19, 2013 to discuss her frequent absences and the need to follow proper leave procedures or risk AWOL in the future. S1 stated that Complainant did not request leave for time off on August 16, 19, 21, 23, or 28. S1 stated that Complainant never informed her that she has a disability.
Complainant's second level supervisor (S2) stated that the leave request policy is that an employee must request leave via an Office of Personnel Management form 71 in advance or, if short notice, request leave within two hours of his/her reporting time by contacting their supervisor via telephone, voice mail, or email. S2 stated, if the latter circumstance, the employee would then complete form 71 once they report back to work.
Post-Investigation
Following the EEO 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) or an immediate final agency decision. Complainant timely requested a hearing. Following a Motion for Summary Judgment from the Agency and opposition from Complainant, the assigned AJ determined that the complaint did not warrant a hearing. The AJ issued a decision without a hearing on July 8, 2016.
The AJ stated that Complainant "conceded" that she was granted sick leave on September 6, 2013 and the record shows that she was also granted sick leave on September 4, 2013. The AJ found that Complainant could not show any training to which she was denied and attempted to "recast the allegation of denial of COTA training as an attack on the performance rating," which was not persuasive. The AJ noted that Complainant failed to raise her performance rating with an EEO Counselor in a timely manner, as she initiated EEO contact on September 12, 2013. The AJ found that Complainant failed to show that she provided appropriate notice for her absences that would have avoided an AWOL charge. Summarily, the AJ found that Complainant failed to show that the reasons articulated by the Agency for its actions were pretextual.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. � 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Disparate Treatment
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 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. 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). 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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. 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).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. S1 stated that, on September 5, she found Complainant in her office unresponsive and Complainant refused to go to the hospital after emergency responders arrived. S1 stated that she and a coworker took Complainant home, at which time Complainant asked to use sick leave the following day. S1 stated that she verbally approved Complainant's request and suggested Complainant seek further medical attention.
S1 stated that she never denied Complainant training. S1 stated that Complainant's COTA position required training, all of which was in-house. S1 stated that Complainant asked to take Microsoft Visio through a private, online company and she approved the request. S1 stated that Complainant delayed taking the Microsoft Visio course and she is unsure if she ever took it. She stated that Complainant took the in-house training.
S1 stated that an employee is charged as AWOL if they are absent from work without leave approval from their supervisor. S1 stated that she met with Complainant on March 19, 2013 to discuss her frequent absences and the need to follow proper leave procedures or risk AWOL in the future. S1 stated that Complainant did not request leave for August 16, 19, 21, 23, or 28 so she charged her as AWOL.
The record shows that the Agency issued Complainant a Performance Counseling, dated June 6, 2016, rating her performance on a critical element as "Partially Achieved Expected Results." Complainant alleged that she received the rating on July 19, 2013. Complainant initiated EEO contact on September 12, 2013. Based on either date, Complainant failed to initiate EEO contact regarding claim (4) within the 45-day regulatory time frame. See 29 C.F.R. �� 1614.105(a)(1) & .107(a)(2). Claim (4) was appropriately dismissed. Id.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 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
March 13, 2018
__________________
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 The Agency issued Complainant a Notice of Removal on May 6, 2014.
3 Claim (4) was not on the list of accepted issues in the Agency letter dated December 26, 2013. However, the record contains a Performance Counseling, dated June 6, 2013, in which S1 rated Complainant "Partially Achieved Expected Results" for performance element 4 - Management and Program Analysis.
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