0120170253
08-08-2018
Orlando O.,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
Orlando O.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120170253
Agency No. HHS-CDC-0281-2015
DECISION
On October 18, 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 September 19, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against based on race (African-American), sex (male) and reprisal (prior EEO complaint) when he received a lower Performance Management Appraisal Program (PMAP) rating than he expected, was denied a detail, and was assigned an increased workload without corresponding pay.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health Analyst GS-12-2 at the Agency's Centers for Disease Control facility in Washington, DC. On June 23, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
2. On March 24, 2015, he requested a second review of his 2014 PMAP.
b. On March 30, 2015, he submitted a rebuttal to his 2014 PMAP evaluation, but never received a response.
c. On April 14, 2015, he requested an update about his rebuttal, but never
received a response.
d. Subsequently, he was not eligible for a cash award because of the PMAP
evaluation not being reviewed.
3. On March 10, 2015, he was denied the opportunity to serve on a detail assignment.
4. Since March 14, 2015, he has been directed to perform GS-13 duties with no financial compensation.
5. On May 26, 2015, he submitted a request for COR-III certification and the request was not approved until July 1, 2015.
6. After filing an EEO complaint in April 2015, his workload and work expectations have become unreasonable and documentation he is provided to conduct his duties are unclear.
7. On January 28, 2015, he received a low rating on his 2015 end of year performance appraisal.2
The Agency contends that they have not discriminated against Complainant, and that he was treated fairly.
Complainant was responsible, inter alia, for analyzing, evaluating, and advising the Agency on a program pertaining to health. Complainant was assigned to the full service of providing monitoring, planning, negotiating agreements, management of initiatives, data collection, developing and implementing standards, program activities, preparing project reports and responding to inquiries and requests for information.
Complainant's PMAP consisted of four critical elements - Administrative Requirements, Customer Service, Communications and Project Management. Complainant received an overall PMAP score of 4.00 for the rating period January 1, 2013 to December 31, 2013. His rating was "Achiev[ing] More than expected Results." Complainant disputed the rating, believing that he deserved a 5.0 (Outstanding), and as a result, he did not do a self-assessment. He also noted that he covered his GS-13 co-worker, who went on a ninety (90) day detail.
Complainant had a lower score in 2015 (3.80), but the same rating (Achieved More than Expected Results).
Regarding Complaint's Issues 2a, 2b and 2c, Complainant's managers stated that he was resistant to providing information to them. They also stated that Complainant did not provide consistent customer service and frequently complained about his perception that the work assigned to him was unfair. Complainant did not provide them with his self-assessment; thus, they were not able to incorporate his assessment into their decision. Finally, they felt that his rating did not qualify for the cash award.
Regarding Complaint Issue 3, the managers stated that they tried to accommodate Complainant's requests, but there were only two details that he was not able to attend. One potential detail was pulled back by the sponsoring office before it was filled, and attendance at the other one was cancelled by Complainant. On March 25, 2015, Complainant sought to attend the "basic COR certification court." Space was limited and request was denied. The employees sent were those who needed to take the course. Complainant did not need to take the course to maintain his Level 2 certification. On July 13, 2015, Complainant was approved to serve on a detail to the Division of Migration and Quarantine. The detail position was classified as GS-12/13 and the duties were "unclassified."
Regarding Complaint Issue 4, the Agency reviewed Complainant's duties, responsibilities and position elements. The Agency found that Complainant's duties did not support GS-13 level work. Complainant provided his assessment, but the Agency could not substantiate his comments, as his submission lacked specifics.
Regarding Complaint Issue 5, Complainant's request for COR-II certification was denied because the certification was not needed for the duties that he performed. Thus, it would not have been a "good use" of Complainant's time. Complainant's request for COR-III certification was approved because Complainant was very dissatisfied, so they provided him with the COR-III training because it might be helpful.
Regarding Complaint Issue 6, one-half of Complainant's work had been reorganized and transferred to another team (workforce development). Complainant actually had less work. Complainant was given the opportunity to substantiate his claims of being over-worked, but did not provide further details. The tasks his managers believed he was addressing were "not a lot of work and only occurred approximately six times a year."
Regarding Complaint Issue 7, the Agency contends that a rating of "Achieved more than Expected" was not a low rating. According to the record, it was the second highest rating possible. It was also an improvement over Complainant's mid-year assessment. In addition, the Agency noted that Complainant's rating was raised higher to reflect his performance while on detail.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant, through counsel, submitted a brief that argues, in pertinent part, that the Agency's justifications for its actions were a pretext for discrimination.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment and Reprisal
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
To meet his burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such "weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); See also Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex and reprisal for having engaged in prior EEO activity, we find that the Agency presented legitimate non-discriminatory reasons for each of its actions. Moreover, other than making general assertions that the Agency's explanations for its actions were pretext for discrimination, Complainant did not demonstrate that said explanations were unworthy of credence. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that the Agency's conduct was based on his race, sex, or prior protected EEO activity.
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 final 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
_8/8/18_________________
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 Complainant also alleged that he was discriminated against when on January 28, 2015, he received a 3.4 PMAP evaluation. This allegation, Complaint Issue 1, was dismissed on the grounds of untimely EEO counselor contact and was not investigated. Because Complainant does not contest the dismissal of this allegation on appeal, we will not address it in the decision herein.
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01-2017-0253
7
0120170253