U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melissia M.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120161834
Agency No. HHSCDC03012014
DECISION
On May 6, 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
April 7, 2016, 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 finding no discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, GS-
12 in the Agency’s Office of the Chief Financial Officer (OCFO) in Atlanta, Georgia. From
February 13, 2014 to November 16, 2014, Complainant’s first-line supervisor was the Supervisory
Budget Analyst (Acting Branch Chief), GS-560-15, Branch 3. OB. OCFO. CDC (RMO-1). He
stated that he was generally aware that Complainant was a female in her 50’s. In March 2014,
Complainant’s Team Lead became her immediate supervisor (RMO-2). Both RMO-1 and RMO-
2 reported to the Budget Officer (RMO-3), who on November 17, 2014, replaced RMO-1 as
Complainant’s second-line supervisor in light of the ongoing issues between Complainant and
him.
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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2
On September 13, 2014, Complainant filed an EEO complaint, which she later amended, alleging
that the Agency discriminated against her on the bases of sex (female), age (54), and/or reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 27, 2014, management issued Complainant a Letter of Reprimand.
2. On April 30, 2014, management charged Complainant with Absent without
Leave (AWOL).
3. On January 29, 2015, Complainant received a final rating of Partially Achieved
Expected Result (2.50) on her annual performance rating.
4. On September 17, 2014, Complainant was placed on a Performance Assistance
Plan.
Specifically, Complainant alleged she was subjected to a hostile work environment, retaliation and
disparate treatment on the bases of age and sex from April 30, 2014 to January 29, 2015. She
claimed that RMO-1 acted unlawfully toward her because she rebuffed his sexual advances during
a period when he was her neighbor and before he became her supervisor. She also said that RMO-
1 influenced the actions of RMO-2 against her. Lastly, Complainant admitted that the only EEO
activity in which she engaged is the instant complaint she filed in September 2014.
After the 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). 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 her to discrimination as alleged.
With respect to Claim 1, Complainant challenged the Letter of Reprimand she received for failure
to follow instructions to update her Information in a CDC-wide database; failure to follow proper
leave-requesting procedures on April 30 and May 1, 2014; and inappropriate conduct of being
unresponsive to emailed requests for information or action from RMO-1, RMO-3, and other
stakeholders. The Agency found that Complainant did not establish a prima facie case of disparate
treatment based on age or sex because Complainant could not identify any similarly situated
employees who committed similar infractions and were not reprimanded. Additionally, the
Agency found that Complainant did not show that management’s articulated reasons for the
reprimand were pretextual. Management stated that it had sent email reminders requesting that
Complainant and 60 other OCFO employees update their information between March 26, 2014
and April 14, 2014. Management maintains that Complainant had not updated her information as
of May 1, 2014. Additionally, the Agency noted that, although Complainant left messages
regarding her inability to come to work because of a power failure and later her high blood
pressure, in neither voicemail did she affirmatively request leave. Finally, although she offered
justifications for some of her non responsiveness, Complainant admitted that she failed to respond
to requests for information and action.
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Ultimately, the Agency decided that, since Complainant believed she was a victim of
discrimination because she was the only one to receive a reprimand, and yet identified no one else
who engaged in similar misconduct, Complainant offered no proof that her age or sex motivated
the reprimand.
Regarding Claim 2, in which Complainant challenged being charged as Absent Without Leave
(AWOL), Complainant maintained that she requested leave when she was unable to come to work
due to a power outage on April 30 and her high blood pressure on May 1. RMO-2 contended that
Complainant informed him she was not coming to work but did not make a specific request for
leave on these occasions. The Agency found that Complainant did not suffer an adverse action
because the AWOL status was removed and changed to annual leave after a meeting between
Complainant, RMO-1, RMO-2, and her union representative to discuss her absences. The Agency
also found that Complainant’s significantly younger female comparator who allegedly had
multiple absences but was not placed on AWOL negated Complainant’s claim that sex was a
factor. Further, the Agency observed that the alleged comparator had not failed to request leave
for her absences. Hence, the Agency concluded that Complainant failed to prove that her brief
AWOL status was because of her sex or age.
As for Claims 3 and 4, Complainant alleged that she received a final rating of “Partially Achieved
Expected Result (2.50) on her annual performance rating in January 2015 and a Performance
Assistance Plan in September 2014, because of her age, sex, and EEO complaint against RMO-1.
Management maintained that the rating and PAP were a proper assessment of Complainant’s
performance. RMO-1 clarified that RMO-2 provided the rating and PAP. RMO-2 stated that he
imposed the rating and the PAP because Complainant: (1) did not provide or she did not timely
submit Status of Funds reports for April, May or June 2014; (2) failed to edit budget reports for
one of the offices she supported for accurateness and completeness (causing it to miss procurement
deadlines and placing it at a $1.3 million dollar risk); and (3) had limited or no follow-up contact
with the programs she supported without supervisory oversight and prodding. RMO-1 stated that
he approved the PAP because RMO-2 had produced supporting documentation but he had no input
regarding the rating since he had not been Complainant’s second-level supervisor since November
2014.
The Agency found that management’s reasons were legitimate and unrebutted by Complainant. It
also found that because Complainant’s four comparators were all women, she negated her claim
of disparate treatment or harassment based on sex. However, because two of the women did not
engage in EEO protected activity, two were significantly younger than Complainant, the Agency
found that she established a prima facie case as to age and reprisal. Notwithstanding her prima
facie case, the Agency concluded that Complainant did not prove her age or EEO activity
motivated her rating or PAP. Accordingly, the Agency found that Complainant failed to establish
discriminatory or retaliatory animus to support a claim of disparate treatment, harassment or
reprisal.
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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€).
After a careful review of the record, the Commission finds no reversible error in the Agency’s
analysis of the issues. Complainant failed to show that similarly situated persons not in her
protected categories were treated differently. The record sustains the Agency’s findings that
Complainant did not request leave to cover her absences, had performance issues, and failed to
follow instructions. Complainant failed to prove by a preponderance of the evidence that
discrimination motivated the Agency’s actions in this complaint.
CONCLUSION
We AFFIRM the Agency’s finding of no discrimination.
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.
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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
September 14, 2018
Date
