0120141829
08-09-2016
Natalya B.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalya B.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120141829
Agency No. HHS-NIH-NIEHS-073-13
DECISION
On April 17, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 20, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chemist at the Agency's National Toxicology Program, National Institutes of Health in Research Triangle Park, North Carolina.
On June 26, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (African-American and married to a White man with biracial children) after she was harassed when she was a repeatedly exposed to 5-chloro-2-methyl-4-isothiazolin-3-one2 (compound) and then terminated on April 26, 2013.3
Complainant was appointed as a Chemist, GS-1320-13, in the Program Operations Branch, National Toxicology Program, National Institutes of Environmental Health Sciences (NIEHS),
National Institute of Health (NIH), Department of Health and Human Services (HHS), on May 6, 2012, subject to a one year probationary period.
Before working at the Agency, Complainant worked for Bayer Crop Science (Bayer). She contended that she was exposed to the compound there when housekeeping personnel used a concentrated cleaning agent containing the compound that burned her left sinus. Complainant filed an Occupational Safety and Health Administration claim against Bayer in 2006, and contended that thereafter the compound started appearing in her home in its pure form - not as part of cleaning agent, resulting in exposure to her family. She believed Bayer was responsible for this. Complainant stated that she changed the locks of her house, but the perpetrators had master keys to get in. While the compound in its pure form is odorless, Complainant indicated that she was aware of its presence because it burns her left sinus.
Complainant stated that soon after starting to work for the Agency, she proposed that the compound be studied by the National Toxicology Program. Shortly thereafter, she traveled to Rockville, Maryland for training and stayed in a hotel where she contended she was exposed to the compound every night in her hotel room. Her first line supervisor (S1) affirmed that when Complainant returned from training on June 25, 2012, she told her about her history of exposure, that she was being harassed by Bayer, and she believed someone planted the compound in her hotel room and class room.4
That day, in an effort to address Complainant's concerns, S1 brought in an Agency Employee and Labor Relations Specialist, who met with them both. To investigate the matter, the Employee and Labor Relations Specialist contacted the Agency Chief of Security and Agency Chief of the Health and Safety Branch. The Health and Safety Branch requested the building owner provide a list of all products used in the facility, and after a thorough review thereof determined that none were found to contain the compound. The Health and Safety Branch researched air sampling methods, but determined that they had limitations and may not be able to detect extremely low concentrations in the air and work surfaces of the compound. Complaint file, at 92.
Complainant also indicated that upon returning from work on June 25, 2012, she reported to S1 that all her desk drawer locks were removed and her computer now had a virus - it kept turning off and on.5 S1 stated it was possible the drawer locks were not there when Complainant moved in because her office was being set up the prior month, and she did not request that the locks be removed. S1 stated that Complainant also reported to her that her telephone line was compromised and her email account hacked. Management requested a new lock for Complainant's office where only Complainant had the key. S1 stated information technology (IT) checked for a virus but none was found, and corrected the problem by replacing her docking station. S1 also contacted the Operations Security Branch, which assured her that Complainant's telephone line and email account were secure.
Complainant contended that on June 29, 2012, she was exposed to the compound in its pure form at work in a second floor bathroom. Complainant reported this to S1. S1 stated that Complainant also reported that her office had been contaminated, so she moved Complainant to a temporary office while the Agency investigated the situation. At the time, Complainant believed Bayer was behind the exposures. Complainant stated that the compound appeared periodically in her office on her desk when returning from coffee breaks and though the air conditioning vents.
From August 20 - 22, 2012, S1 and Complainant traveled to Columbus, Ohio for a meeting and stayed in a hotel. S1 stated that when she woke up on August 22, 2012, she had a sore throat and was suffering from seasonal allergies, and she told Complainant she was feeling under the weather. S1 wrote that Complainant responded that the harassers targeted Complainant by planting the compound in both their rooms in the event they switched rooms. In her statement Complainant corroborated this account, except denying that S1 attributed feeling ill from allergies.
On February 12, 2013, Complainant reported to security that after returning to her office from getting coffee, she smelled a cleaning agent odor around her desk, and during that time she noticed a man she never saw before walk quickly and suspiciously by her office, and earlier smelled the same cleaning agent on him. S1 stated Complainant speculated to her that the man planted the material in her office. The Employee and Labor Relations Specialist stated that Complainant described the man as having blonde hair and that security reviewed all the video tapes from that date which revealed no evidence of anyone who matched the description Complainant gave in the building. This account is corroborated by S1's statement - no one fitting the description of the man Complainant described was seen in the videos entering or exiting the building. Complainant countered that a security person told her the man was a contractor with the heating and air- conditioning company.
Complainant contended that after she reported the exposure incident to security, the exposures and concentration thereof to the compound increased. She contended that the following week, on February 20, 2013, while in the waiting room of her oldest daughter's therapist she was targeted with a high concentration of the compound, and also experienced high concentrations of the compound coming from her office air conditioning vent. S1 stated that on March 6, 2013, Complainant told her that the day before she was exposed to a high concentration of something she believed was the compound the day before in her daughter's psychologist's office, and after complaining the doctor decided to discontinue seeing her daughter. According to S1, Complainant at some point told her that her family was exposed to the compound at home via tampering with their food and spiking her childrens' medication.
Complainant wrote that each time she told S1 of her exposure, her exposures seemed to worsen, and after she stopped reporting them to S1 the exposures stopped. Complainant stated that when she reported the exposures to S1 she expected that the Agency would investigate and monitor for the pure compound. Complainant contended she was harassed by being repeatedly exposed to the compound, and that when she asked for monitoring S1 said it was too expensive. After her termination, Complainant stated she now knew the Agency did not monitor because it was also responsible for the exposures.
S1 countered that she informed Complainant that the Health and Safety Branch could monitor the air for the compound, but Complainant said the compound was volatile and short lived, and said "don't worry about it."
Complainant was terminated on April 26, 2013, within her one year probationary period, on the ground of creating disruptions in the workplace by numerous complaints she made about being targeted with the compound by Bayer, as well as complaints about someone planting a virus on her computer, and her government email and telephone being compromised. The Agency charged that given the nature of her complaints, it was imperative for management to address the issues, but while it did so and determined they had no foundation, the complaints continued. S1 stated that it seemed like every week there was some concern Complainant raised.
Complainant claimed that one month before she was terminated she informed S1 that her husband is White and her children are biracial, and she was terminated for this reason. S1, who hired Complainant, countered that she knew Complainant was in an inter-racial marriage from nearly the beginning of her employment since Complainant speculated that Bayer was exposing her to the compound for this reason, and she knew her husband was White from photographs she shared of her husband and children soon after starting at the Agency.
At the conclusion of 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). In accordance with Complainant's request, 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.
ANALYSIS AND FINDINGS
To prevail in her disparate treatment claim of termination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant is a member of protected group because of her race (African-American/married to a White man with biracial children). The Agency terminated her. Therefore, the first and second elements of Complainant's prima facie case have been met.
It must next be determined whether Complainant was treated less favorably than similarly situated individuals outside her protected class. In order to be considered similarly situated, all relevant aspects of Complainant's work situation must be identical or virtually identical to those of the comparative employees. This requires that Complainant and comparative employees engaged in the same conduct, reported to the same supervisor, performed the same job functions, and had equivalent disciplinary records. Hunter v. U.S. Postal Service, EEOC Appeal No. 05960762 (October 1. 1998). Complainant, who was a probationary employee, failed to identify any comparative employees, or raise any other indicia of discrimination which would make out a prima facie case.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, the Commission finds the Agency articulated a legitimate, nondiscriminatory reason for its conduct. The Agency stated Complainant was terminated due to disruptions in the workplace relating to the numerous complaints she made regarding exposure to the compound, suspicious persons on site, tampering with her telephone and email account, and so forth. The Agency was consumed by these unsubstantiated claims, which were far-fetched and bizarre. S1, who hired Complainant, was long aware of Complainant's family's racial composition. S1 consulted with the Labor and Employment Specialist on the decision to terminate Complainant's employment who concurred because Complainant's unfounded complaints disrupted the workplace.
Complainant failed to show by a preponderance of the evidence that this explanation by the Agency was a pretext for discrimination.
Likewise, we find that Complainant did not prove her claim of harassment. She failed to prove that the harassment occurred, as alleged, including that the Agency denied her request to monitor for the compound.6
The FAD is AFFIRMED.
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
August 9, 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 5-chloro-2-methyl-4-isothiazolin-3-one is classified as a disinfectant. Complaint file, at 92.
3 In addition to race, the Agency defined the complaint as alleging discrimination based on disability. Also, rather than characterizing her complaint as alleging harassment when she was repeatedly exposed, the Agency characterized this as failure to reasonably accommodate Complainant's request to monitor the presence of the compound in her office and/or building. In her affidavit, Complainant wrote that she does not claim to have a disability, and this basis was added by the Agency EEO office. She contends that she and her family were deliberately exposed to high concentrations of the compound. Complainant writes that she is appealing the Agency's decision regarding not being discriminated against based on her race and being subjected to a hostile work environment. As Complainant is not alleging discrimination based on disability, we do not address this basis.
4 In her rebuttal affidavit Complainant wrote that she only told her supervisor about her hotel room, not the classroom. She wrote that her supervisor's knowledge about the classroom indicated the Agency was also responsible to exposing her, along with Bayer, because only those responsible would know of the location of the exposures.
5 Much later, during an investigation of another incident, Complainant told Agency security that someone entered into her office and planted the virus on her computer.
6 Complainant submits a letter by her family practice physician addressed to the Commission and dated May 15, 2014 - after she filed her appeal - that she was exposed to the compound at Bayer and at work with the Agency. The letter tracks Complainant's version of events. The Agency investigated Complainant's contentions, and was unable to substantiate them. The physician drafted the letter long after Complainant left the workplace. Given this, we give the letter little weight.
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