Natalie F.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Mar 3, 2016

0120140270 (E.E.O.C. Mar. 3, 2016)

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

Natalie F.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120140270

Hearing No. 551-2013-00093X

Agency No. HHS-IHS-0465-2012

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 20, 2013 final order 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Data Entry Coder
in the Agency’s Medical Records Department at the Yakama Indian Service Unit facility in
Toppenish, Washington. Complainant’s supervisor (S1) audits the visits of the coders’ work
by selecting one day each month for each coder and looking at the first 100 visits for that
particular day. From January to September 2012, Complainant had an overall accuracy of 94
percent. In June 2012, Complainant had an average of 97 percent, but her accuracy dropped
in July to 90 percent. In August, Complainant’s average was 93 percent. S1 spoke with the
coders individually regarding their audits. On August 31, 2012, S1 spoke to Complainant
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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about her visits and asked her if she had any difficult visits that day because some of the visits
were more difficult to code.

On one occasion around June 2012, Complainant returned late from lunch with a co-worker.
S1 questioned the employees about their tardiness, but did not discipline them. Complainant
believes that S1 monitors her and another co-worker’s lunch breaks very closely.
Subsequently, at various staff meetings, S1 reminded all employees to ensure they were taking
their proper lunch and break periods.

The Lead Biller at the Business Office asked S1 to request that all coders, including
Complainant, call S1 first before going through the Lead Biller. For that reason, S1 instructed
her staff to do so. In addition, S1 asked that all employees limit personal phone calls and talk
because it adversely affected their ability to concentrate on their coding work. Complainant
claimed that she was not allowed to use the phone for official business, but S1 noted that
Complainant uses the phone on a daily basis with medical clerks, nurses, and other staff.

On September 13, 2012, an email from Complainant’s co-worker (CW1) was accidentally sent
to the entire staff. The email stated “Tinwoman and Scarecrow were talking about something
and all I could hear was preferential treatment…that is why I documented when I asked you
about my lunch break.” The email did not identify who Tinwoman and Scarecrow were, but
Complainant believed it was about her and a co-worker. S1 held a staff meeting that afternoon
and instructed all employees to stop talking about the message, and requested that each
employee acknowledge that they understood her request. S1 counseled CW1 about the incident
and issued her a verbal warning and a copy of the electronic health records broadcast policy.

On October 1, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Native American), national origin (Oglala Sioux Tribe), age (56), and in reprisal for prior
protected EEO activity as evidenced by multiple incidents, including, her supervisor threatened
her during a meeting; her supervisor checked her count, but did not do so for the other coders;
her supervisor timed her lunch and regular breaks; her supervisor will not let her use the phone
for official business; her supervisor does not let her communicate with the other coders; and
her supervisor indicated there was a decrease in her accuracy reports from an average of 96-98
percent to 90 percent.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on August 14, 2013.

In the decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. In addition, the AJ found that there was no
evidence that the alleged conduct was based on discriminatory or retaliatory animus. With

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regard to the “Tinwoman” email, Agency management addressed the matter promptly,
counseling the individual who sent it and cautioning the entire staff not to speak about it
anymore. The AJ concluded that Complainant failed to show that the Agency’s reasons for its
actions were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, retaliation, or a hostile work environment as alleged. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her error reports were fraudulent and she was set up to
fail. Further, Complainant argues that she has been subjected to a hostile work environment.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

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In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was subjected to a hostile work environment as evidenced by multiple incidents.
Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
retaliatory animus. For example, as to the Error Reports, S1 affirmed that she audited each
coder one day each month all on the same day. ROI, Ex. F3, at 3. S1 noted that this way
each coder was rated on the same amount of visits. Id. S1 added that each coder was held to
the same standard which was established at the beginning of the year and signed by each
employee, supervisor, and the Chief. Id. S1 confirmed that Complainant simply made more
errors in July than she had in previous months. Id. With regard to her claim that S1
threatened her during a meeting, S1 explained that she addressed the entire staff after CW1
accidentally sent an inappropriate message to the entire staff. Id. at 7. S1 stated that she
informed the staff that the situation had been taken care of and that she would possibly
reprimand any employee who made any further comments about the matter. Id. S1
emphasized that she addressed everyone in the meeting and did not single out Complainant.
Id.

With respect to her claim that S1 timed her lunch breaks, S1 noted that she takes her lunch at
the same time as Complainant and noticed one day that Complainant and a co-worker returned
late. ROI, Ex. F3, at 2. S1 stated that she questioned the employees about it as she would for
any employee she supervised. Id. Finally, S1 denied that she ever told Complainant or any
member of her staff that they could not use the phone for official business. Id. at 3. S1 stated
that Complainant may have been referring to the Lead Biller’s request that coders go through
her first, as their supervisor, before calling or emailing her with coding questions. Id.
Likewise, S1 affirmed that she did not institute a “no talking” rule in the office; rather, S1
asked employees to keep personal talk to a limit. Id. The Commission finds that
Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency's explanation was a pretext for discrimination. As a result, the
Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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

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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 3, 2016
Date