0120142667
12-12-2016
Lyman D.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lyman D.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120142667
Agency No. HHSCMS02712013
DECISION
Complainant timely appealed the Agency's July 8, 2014, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant no longer worked for the Agency, having left his position as a Health Insurance Specialist (GS-107-12) at the Agency's Centers for Medicare and Medicaid Studies ("CMS") in Baltimore, Maryland in 1997.
On June 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), religion (Christian), color (dark brown), disability (psychiatric), age (47), and reprisal for prior protected EEO activity (complaints filed against the Agency during and after his employment) when on April 26, 2013, the Supervisory Human Resources Specialist failed to provide him with information concerning his employment reinstatement rights as requested.
Complainant worked for the Agency from 1989 until his removal in 1997, due in part to his behavior associated with a psychiatric disability. Complainant applied to the United States Office of Personnel Management ("OPM") for Disability Retirement based on his disability, which it granted in 1999.
In 2013, Complainant emailed the Agency inquiring about his reemployment rights and information about competitive and noncompetitive vacancies. He also stated he was eligible and had the necessary documentation to apply for opportunities under the Schedule A hiring authority (non-competitive appointment) for employees with disabilities. On March 25, 2013 a generalist in the Agency's Human Resources ("HR") office responded that so long as he was found capable of working, Complainant could reapply for Federal employment, and referred him to the Help Desk for answers related to his disability. A Help Desk employee followed up on April 1, 2013 and directed Complainant to the Human Resources Specialist responsible for disability hiring ("H1"). Then, according to the Agency, Complainant emailed 50 Agency employees, explaining that he was a former employee with a disability, that he wanted to return to work, and that the Agency never notified him of his rights and benefits since he left in 1997.
On April 23, 2013, H1 (African American, female, Baptist, age 51, no disability, no prior EEO activity) testified in an affidavit that she spoke with Complainant by phone and followed up that day with an email containing several links to online resources about federal reemployment and information for Disability Annuitants. H1 advised Complainant that the Agency was responsible for answering his specific questions, and notified the Agency's Benefits Team Lead by sending a copy of the email in case Complainant followed up. H1 further testified that she was unaware of Complainant's race, sex, color, age, religion, disability or prior EEO activity during the relevant time frame. Complainant met with Agency officials concerning reemployment. Complainant alleges he never heard back, so he initiated EEO counseling.2
According to the Agency, at the conclusion of the investigation, it sent Complainant a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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 him to discrimination as alleged.
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 law").
Request for a Hearing
Complainant appears to argue on appeal that the Agency's final decision was improperly issued, instead requesting a hearing before an EEOC Administrative Judge. Under our regulations, an Agency is required to provide the complainant with a copy of the investigative file and notify him or her that he or she has the right to request a hearing within 30 days of her receiving the investigative file. See 29 C.F.R. � 1614.108(f). Pursuant to 29 C.F.R. � 1614.110(b), an Agency "shall take final action by issuing a final decision" when a complainant does not reply to a notice of the right to request a hearing before an EEOC Administrative Judge ("AJ") or an immediate final decision. Even taking into consideration that during the time window to request a hearing, Complainant did not reside at his address of record, it is well established that Complainants have a duty to apprize the agency of address changes and other circumstances that may affect the processing of EEO complaints. Reinbold v. United States Postal Serv., EEOC Appeal No. 0120050087 (Feb. 3, 2005).
Complainant does not dispute the Agency's account that after the investigation concluded on January 6, 2014, it sent a copy of his investigative file, along with the notice and forms for requesting a hearing before an AJ to his address of record. There is no evidence that Complainant provided the Agency with an updated address or that he responded to the Agency's notice of his right to file a request for a hearing. We also see no indication that he designated a representative for the Agency to contact for matters pertaining to this complaint. Therefore, Complainant waived his option to pursue his complaint by requesting a hearing before an AJ when he failed to timely respond to the Agency's notice in January 2014. Likewise, given Complainant's failure to respond, the Agency's final decision was properly issued.
Disparate Treatment Claim
A claim of disparate treatment 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, he or 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).
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. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant complaint, after carefully reviewing Complainant's arguments on appeal, we find that Complainant has not shown by a preponderance of the evidence that the Agency's actions were discriminatory. Additionally, the Agency provided affidavit evidence and emails from Agency personnel demonstrating that it provided Complainant with the information he requested. Complainant's appeal also describes additional claims that are not at issue in the complaint before us, so they will not be adjudicated in this decision. If he has not done so already, Complainant may raise a separate complaint based on these allegations by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
December 12, 2016
__________________
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 Since Complainant's allegations concerned Agency EEO and HR officials, the Agency properly sought alternate processing. The Department of the Interior ("the Department") accepted Complainant's Formal Complaint for investigation on the Agency's behalf in September 2013, and in November 2013, its assigned EEO Investigator ("the Investigator") attempted to contact Complainant. Complainant's father contacted the Department on stating that Complainant was unavailable to participate in the investigation, and would be away from his address of record for at least nine months. The Department provided Complainant's father with a Designation of Representative form, advising him that Complainant could designate his father as a representative for this complaint. Receiving no response, the Investigator proceeded with the investigation using transcripts of Complainant's prior EEO testimony.
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