[Redacted], Ashely H., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2020003503 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashely H.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2020003503 Agency No. OCRD-062-19-F DECISION On May 21, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 27, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Pharmacist, GS-0660-14, at the Agency’s Commodity, Security, and Logistics (CSL), Division of the Office of Population and Reproductive Health (PRH), Bureau of Global Health (GH) in Arlington, Virginia. On July 16, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her because of her race (African), national origin (Kenya), sex (female), color (Black), age (over 40), and in reprisal for prior protected EEO activity when: 1. on an ongoing basis, Complainant has been denied attendance to meetings of the Institute for Sustainable Communities; 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. 2020003503 2 2. on an ongoing basis, Complainant has been denied attendance to meetings of the Central Contraception Project; 3. on March 1, 2019, Complainant was assigned a waste management desk review; 4. on July 20, 2019, Complainant was denied Automatic Directive System 312 clearance; 5. on March 20, 2019, Complainant received a minimally successful annual performance evaluation; 6. on April 4, 2019, Complainant was denied a professional development as a Performance Improvement Plan; 7. on April 12, 2019, Complainant was denied attendance to a meeting in Copenhagen; 8. on April 15, 2019, Complainant’s freedom of speech was infringed regarding the Copenhagen meeting; 9. on April 18, 2019, Complainant’s annual evaluation form was delayed with unnecessary requirements; 10. on April 22, 2019, Complainant was denied attendance to a new product advisory group; 11. on April 26, 2019, Complainant’s timesheet entry regarding telework was scrutinized; 12. on April 30, 2019, Complainant’s temporary duty to Guinea was scrutinized; 13. on April 30, 2019, the denial of Complainant’s contracting officer representative designation was sustained; 14. on May 2, 2019, Complainant’s reasonable accommodation was scrutinized; and 15. on May 15, 2019, Complainant was excluded from new product project discussion. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. Complainant requested that the Agency issue a final decision.2 2 However, Complainant agreed to hold processing of this case in abeyance, pending a mediation for a prior complaint. On April 20, 2020, this case was returned to the Agency for continued processing, after Complainant decided not to participate in mediation. 2020003503 3 In accordance with Complainant’s request, the Agency issued a final decision on April 27, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant’s first-line supervisor (“S1”) (Caucasian, male, white, American, over 40) asserted that he had no role in organizing or attending meetings of the Institute for Sustainable Communities and the Central Contraception Project. He also stated that he was not invited to the meetings. However, S1 stated that, based on feedback he received from attendees at the meetings, he was informed that Complainant had a habit of debating and re-litigating issues that had already been decided during the meetings, which undermined the program’s goal of speaking with one voice. As a result, he confirmed he asked Complainant not to attend the meetings. 2020003503 4 With regard to Complainant’s allegation that she was assigned a Waste Management Desk Review, S1 explained that Complainant has expressed an interest in this matter and spoken about how medical waste is handled in low-income countries. S1 asserted that it was highly appropriate to ask that Complainant’s desk review focus on options for proper management of medical waste from family planning services. In addition, S1 asserted that the Automatic Directive System 312 clearance process (“ADS 312”) provides waiver approval on the eligibility of restricted commodities finance with program funds. He stated that the change in the ADS 312 process was made to align the chain of accountabilities and to facilitate a better technical discussion around product selections being made. He noted that Complainant still played an active role in the review of ADS 312 memorandums without having to provide a security clearance for direct approval. S1 acknowledged that in March 2019, he issued Complainant’s performance appraisal with a performance rating of “Minimally Successful.” He stated that for the two previous rating years she had also received an overall rating of “Minimally Successful.” He also alleged that he provided her with extensive feedback about her work performance during the rating period at issue. Therefore, he denied that Complainant had not been fully informed in advance of her perceived performance deficiencies. The record shows that the disputed performance appraisal prepared by S1 contained the following sub-ratings: • Critical Element (CE) 1, Execution of Duties: Fully Successful • Critical Element 2, Technical Expertise: Minimally Successful • Non-Critical Element 3, Planning and Organizing Work: Exceeds Fully Successful • Non-Critical Element 4, Communications: Unacceptable • Critical Element 5, Professionalism and Teamwork: Minimally Successful • Critical Element 6, Customer Service: Minimally Successful. S1 stated that he based the ratings on “[t]he mid-cycle progress review, employee's end-of-cycle self-assessment, end-of-cycle Skills Feedback Worksheet, end-of-cycle 360 feedback, and performance feedback provided during the rating cycle.” Under CE 2, Technical Expertise, S1 wrote: While [Complainant] stayed abreast of regulatory/QA practices attending FDA's regulatory conference and monitoring FDA/industry communications, she did not effectively apply her expertise to support contraceptive procurements in the complex USAID context. Her reviews of contractor assessments of generic contraceptives were driven by a narrow application of FDA/WHO requirements; the reviews thus did not objectively weigh alternative courses of action available to CSL to ensure product quality. 2020003503 5 [Complainant]'s inability to weigh alternatives and explain her recommendations therefore did not productively contribute to identifying courses of action that ensure product quality while ensuring supply continuity and best value for CSL's customers. For example, a technical memo about an implant did not adequately justify [Complainant]'s tentative approval for the product nor did [Complainant] adequately justify her reservations about an injectable. [Complainant] did support CSL country back stops with valuable technical assistance for product overbranding. Under Non-CE 4, Communications, S1 stated: [Complainant]'s communications on technical QA Issues lacked expected accuracy, completeness, clarity, and argumentative rigor. Despite feedback, [Complainant] refused to address these concerns for a technical memo regarding procurement of a contraceptive implant. [Complainant]'s representations to senior CSL and PRH leadership and coworkers about PRH QA procedures, an injectable contraceptive and CSL's provision of supplies for safe injection were inaccurate and misleading, lacking important details. A colleague reported that [Complainant]'s writings for a PRH working group did not meet her expectations of a senior technical adviser and required extensive reworking. Colleagues report that [Complainant] comes across in meetings as inattentive to a meeting's focus, inefficiently taking it in different directions, recreating settled issues, not easily yielding the floor, and overall not contributing to forward progress. [Complainant] did not support the need for consistent messaging and efficient direction (as led by the COR) to implementing partner and with external stakeholders (as guided by CSL leadership). [Complainant] relitigated decided issues with co-workers before partners (e.g, about safe injections supplies), and failed to understand the need to coordinate her communications as a USG representative in multi-donor meetings with other CSL participants. Under CE 5, Professionalism, S1 stated: Though [Complainant] participated in the GH Mentoring Program, her interactions with co-workers in the exercise of her core responsibilities to provide QA support for CSL's contraceptive procurement did not nurture collaboration of support the inclusion of alternative perspectives in technical debates. [Complainant] often mis-read technical disagreements as challenging her authority. She did not listen well to alternative perspectives and, contrary to her Position Description, asserted that her technical opinions should influence Agency direction without being vetted by who she considered "nontechnical" CSL leadership. In one co-worker's view, [Complainant] could be "borderline insubordinate.” Another co-worker noted she has "never seen [Complainant] negotiate." Co-workers speak more positively of [Complainant]'s professionalism in her support to CSL's country backstopping. 2020003503 6 A colleague noted [Complainant]'s valuable technical assistance to other CSL backstops in the area of overbranding. A Mission colleague described [Complainant]’s support as "straightforward, honest, and very respectful of others." (ROI at 806.) 42. Under CE 6, Customer Service, Mr. Bornbusch stated: [Complainant]'s customer service varied significantly. She often failed to treat coworkers with respect in technical debates over QA for CSL's contraceptive procurement, her core area of responsibility. [Complainant] resorted to unsubstantiated, sometimes personal attacks, describing co-workers as "non- technical.” Openly questioning the legitimacy of their hire, or suggesting that they and the Agency put the health of patients and service providers at risk. [Complainant] was discourteous to PRH leadership when given feedback about FYI emails to the PRH office and her need to follow office requirements for travel approval. Speaking about [Complainant]'s country support, a Mission colleague noted more positively that [Complainant] provided excellent customer service to USAID/Guinea, promptly responding to the Mission's emails and delivering on Mission requests. A CSL co-worker noted [Complainant]'s valuable technical assistance in advocating for the precedent-setting trademarking of the Blue Lady logo for oral contraceptives and another her timely and detailed response to review artwork for contraceptive overbranding. Regarding Complainant’s allegations that she was denied attendance to a new product advisory group, her timesheet entry regarding telework was scrutinized, her temporary duty to Guinea was scrutinized, and she was exclude from new product project discussion, S1 stated that he had no knowledge of these events. The Deputy Director, also Complainant’s second-level supervisor, (“S2”) (South Asian/ Sri Lankan, female, Brown, over 40), stated that she was the approving official for Complainant’s annual reviews and for the rating period ending on December 31, 2018. She stated the rating was made “fairly by S1 based on Complainant’s work objectives and evaluations of her performance, and 360-degree feedback from colleagues.” Further, she noted that Complainant appealed her 2018 performance rating to the appraisal review committee, who upheld the rating issued by S1. Regarding Complainant’s allegation that she was denied attendance to a meeting in Copenhagen and her freedom of speech was infringed regarding the Copenhagen meeting, S2 noted that Complainant requested her supervisor’s approval to travel to Copenhagen. She stated, however, that S1 did not approve her request. S2 stated that S1 “opted to approve attendance at the international meeting by a staff person other than [Complainant] in order to make the most efficient use of GH/PRH’s operating expense (OE) travel funds.” In addition, S2 noted that since S1 stated Complainant was not precluded from calling in to portions of the meeting, she did not agree that Complainant was denied the opportunity to share her technical expertise. With respect to Complainant’s allegation that her annual evaluation form was delayed with unnecessary requirements, S2 stated that Complainant did not follow S1’s request that she summarize her key accomplishments, complained to the union president regarding S1’s request 2020003503 7 to her regarding her self-assessment. As a result, Complainant challenged her 2018 Annual Evaluation Form (AEF) before the Appraisal Committee (AE). S2 stated that the AE upheld the rating. S2 acknowledged that she was not familiar with Complainant’s claim that the denial of her Contracting Officer Representative (COR) designation was sustained. She stated, however, she agreed with Complainant should not have to maintain her eligibility to be designated as a COR if she was not serving in that role. The Public Health Advisor (Caucasian, male, white, European, over 40) stated that he was responsible for sending the meeting invitations. He stated that he did not invite Complainant to the meetings because her presence was not required at the meetings for quality assurance or for any other reason. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discrimination on any of the bases alleged or retaliatory animus for her prior EEO activity. Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that on May 2, 2019, her reasonable accommodation was scrutinized. According to the Reasonable Accommodation Program Manager (Caucasian, male, white, American, over 40), he asserted that on November 26, 2018, Complainant was granted a reasonable accommodation for premium class flights on flights over two hours in length with a rest period 24 hours before reporting for duty. Substantial record evidence supports the Agency’s finding that Agency management had accommodated Complainant within her medical restrictions. There is no evidence of record to dispute this assertion. Harassment To the extent that Complainant’s claims can also be construed as one of ongoing discriminatory harassment/hostile work environment, such a harassment claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020003503 8 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020003503 9 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 19, 2021 Date