[Redacted], Breanna S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2020003400 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanna S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020003400 Hearing No. 540-2018-00268X Agency No. HHS-IHS-0402-2017 DECISION On May 7, 2020, 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 March 27, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented herein is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to discrimination based on race, national origin, and age as alleged. 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. 2020003400 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Technician, GS-8 at the Agency’s Chinle Comprehensive Health Care facility in Chinle, Arizona. On September 18, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Native American), national origin (Navajo), and age (63) when on February 27, 2017, the Community Nutrition Supervisor (S1) informed Complainant and staff that Health Technicians could not have a Regular Day Off (RDO) nor earn compensatory (comp) time or overtime, as the Registered Dietitians (RDs) were permitted to do. On November 23, 2017, the Agency dismissed this claim for untimely EEO Counselor contact pursuant to 29 C.F.R § 1614.107(a)(2). Complainant appealed the dismissal to the Commission. In Breanna S. v. Dep’t of Health and Human Serv., EEOC Appeal No. 0120180601 (Feb. 16, 2018), we found that the Agency improperly dismissed the claim. Additionally, we found that the Agency defined Complainant’s claim too narrowly by limiting the alleged discrimination to a single staff meeting held on February 27, 2017. See id. Rather, the record reflected that Complainant alleged she was subjected to an ongoing hostile environment. The hostile work environment claim was remanded to the Agency for further processing. See id. 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). Complainant timely requested a hearing. The AJ conducted an Initial Conference on August 12, 2019. Full discovery was granted to the parties. On February 5, 2020, the Agency submitted a Motion for a Decision Without a Hearing. Complainant filed a response opposing the motion on February 25, 2020, and the Agency replied. During the relevant time, there were four RDs at Complainant’s facility: one was Native American, one White, and two were Hispanic. Three of the RDs were under age 40 and one was over age 40. There were four Health Technicians, including Complainant. All of the Health Technicians were Native Americans. Complainant was the only Health Technician over age 40. According to Complainant, when she requested RDO the approval was delayed for two months. Further, when it was finally approved no one informed her or S1 of a startup date. Complainant stated that her second-line supervisor (S2) notified her that she could only take an RDO on Tuesday, Wednesday or Thursday. If she took a Monday or Friday RDO, alleged Complainant, S2 told her she could not ask for additional leave because Complainant was needed for program coverage. Complainant contended that the RDs were allowed to take Monday or Friday as RDOs. Complainant stated that the rationale, that it was necessary to maintain clinic coverage, did not apply to the RDs. 2020003400 3 Complainant stated that there was no written facility policy for denying RDOs to Health Technicians. Yet, she and other Health Technicians were denied RDOs while RDs had their RDOs approved. Complainant also indicated that employees were told they could not take additional leave if they had an Alternate Work Schedule (AWS). Complainant stated that while she did not request overtime or compensatory time, those that did were told to keep such requests to a minimum. Complainant indicated that the alleged management actions were related to her race because only one out of three RDs was Native, but all of the Health Technicians were Native. Complainant believed her national origin was the basis for the harassment because her third-level supervisor (S3) treated Native employees badly. Specifically, Complainant noted that S3 did not see Native employees or acknowledge them. S3 treated Native employees like they were "idiots", stated Complainant, unless they were useful to her or held a higher position. Complainant asserted that age was a factor because management viewed her as old, and assumed they could bully, undermine, and harass her. S2, a new supervisor, acknowledged that approval of Complainant’s RDO request was delayed. She indicated that this was mostly due to staff coverage concerns. The record includes emails between S1 and S2 reflecting S2’s desire to maintain adequate Health Technician staffing on the particular RDO requested by Complainant. S2 did not initially approve the schedule because she believed if any Health Technician needed to use leave on those days the Department would be inadequately staffed. S3 stated that the issue was resolved after management reviewed staffing parameters and concluded it could adopt a new schedule while providing sufficient staff. According to S3, the processing of Complainant’s RDO request was delayed because Complainant’s AWS application was lost at least twice: once by S1 and Complainant and again when Complainant left it with an unspecified individual from her union. S3 also stated that confusion on the part of S1 and S2, regarding who was required to sign the AWS application and who had ultimate authority to resolve conflict arising from an AWS schedule application, compounded the delay. S2 was unfamiliar with the RDO approval process, explained S3, because she became a supervisor after other Health Technician’s requests had been approved. Several of Complainant’s coworkers indicated that their RDO approval and AWS effective startup dates were also delayed. They described tension existing between S1, S2, and S3 which created in a hostile work environment. Contrastingly, management denied telling employees that they could not take additional leave if they had an AWS. They asserted that Complainant did not suffer any adverse action. According to Agency policy, “[i]n order for any work schedule to be established or continued, there must be adequate number of staff to provide full coverage for all hours of service provided by the unit.” Employees must request approval to work an AWS in advance. These requests must be submitted in writing to the supervisor at least 2 pay periods in advance of the preferred effective date. 2020003400 4 Health Technicians and RDs are separate positions within the Chinle Service Unit with different requirements, responsibilities, and supervisors. RDs did not work for the same department as Complainant. After reviewing submissions from both parties, and adopting the Agency’s motion in its entirety, the AJ concluded that there were no genuine issues of material fact. The AJ issued a decision without a hearing on March 27, 2020, finding in favor of the Agency on all claims. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding no discrimination became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL In her Appeal Brief, Complainant asserts that the AJ erred in issuing a decision without a hearing. Complainant argues that the AJ’s ruling provided no actual reasoning for denying a hearing, but simply “accepts the Agency’s Motion in its entirety.” Complainant reiterates her belief that Health Technicians were not allowed an RDO and were not allowed to earn compensatory time or overtime, while RDs were granted such privileges. She argues that the policy was administered in such a manner that there was a “disparate impact” on the Native Health Technicians. Further, the supervisor had unfettered discretion which allowed for “work” reasons that Complainant argues were patently false. As for the Agency’s contention that she did not suffer an adverse action, Complainant argues the RDO policy was discriminatory in that she, and the other Native Health Technicians, were not given the same access to the “favorable” RDO policies. Regarding management’s assertion that the alleged actions were based on “confusion”, Complainant argues confusion is a very thin and transparent excuse for discrimination. In its Appeal Brief, the Agency reiterates its proffered legitimate, non-discriminatory reasons. The Agency asserts that Complainant’s allegations lack any supporting evidence. The Agency requests that the Commission affirm the AJ’s decision. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. 2020003400 5 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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 Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not shown there are genuine issues of material facts in dispute. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. 2020003400 6 Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. S3 attested that Complainant’s RDO request was delayed because S1 had previously approved RDOs for other HTs. S1 and S2 had to coordinate to ensure that adequate staffing was available to provide coverage for all hours of service. Consequently, Complainant was asked to select a day that did not already have someone within the department off in some capacity. We find no evidence that the Agency’s RDO policy was based on a discriminatory motive or that it was inconsistently applied to Complainant based on her protected classes. In fact, a HT who shared Complainant’s protected bases, and submitted her request before Complainant, was granted her RDO. Therefore, we find that Complainant has failed to establish a nexus between her race, national origin, or age and the Agency’s actions. The granting of RDOs, overtime, and comp time to other HTs also undermines Complainant’s assertion that HTs broadly were treated less favorably than the RDs. Additionally, the record does not indicate that RDs are similarly situated. To demonstrate that another employee is a similarly situated comparator, Complainant must show that all relevant aspects of the comparator's work situation were nearly identical to his or her own. Martinez v. Dep't of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1. 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). 2020003400 7 Here, the record reflects that the RD position requires more education than HTs and consists of different duties and responsibilities. Moreover, S3 noted that RDs “are health professionals whose positions are hard to fill”. One of the strategies used to recruit and retain RDs is to offer alternative work schedules, attested S3. We also find no evidence of pretext. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (stating that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record). While Complainant argues that professed “confusion” by management was pretextual, she does not provide any supportive evidence. Rather, S2’s confusion is supported by the fact that she was new to her position and unfamiliar with the process. Hostile Work Environment Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision finding no discrimination. 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. 2020003400 8 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. 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. 2020003400 9 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 30, 2021 Date