[Redacted], Carleen L., 1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2020004567 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carleen L.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020004567 Hearing No. 531-2019-00324X Agency No. HHS-FDAOC-061-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the March 19, 2020, decision of an EEOC Administrative Judge concerning an 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.2 BACKGROUND During the period at issue, Complainant worked as a Health Program Coordinator, 0601, GS 14 at the Agency’s Research and Development ("R&D") within the Office of Women's Health (“OWH”) in Silver Spring, Maryland. 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 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action. 2020004567 2 On April 17, 2018, Complainant filed a formal EEO complaint claiming that the Agency subjected her continuous harassment based on race (Asian) and national origin (China) when: 1. On March 1, 2018, Complainant was informed by her first level supervisor (“S1”) that her Performance Management Appraisal Program (“PMAP”) did not meet a minimal satisfactory level and was given a Performance Improvement Plan (“PIP”). Complainant alleges that S1 “maliciously” criticized her work and often negatively commented several times about her use of English grammar and punctuation. Complainant also alleges that the PIP she was given listed three new projects that were never discussed or assigned to her during the PMAP period of January - December 2017. Complainant states that S1 required her to finish all writing assignments in a period of six weeks, which she alleges as impossible to accomplish. 2. On February 13, 2018, Complainant stated that during an R&D team meeting, S1 showed her a “RACI Matrix table” listing the responsibilities of each member for all major projects; there were 59 tasks listed. Complainant alleges that she was assigned 52 of them. Complainant further alleges that her assigned workload used to be carried by two people. 3. On or about July 29, 2018, Complainant’s second level supervisor (“S2”) issued her a letter informing her that she was unsuccessful in the Critical Element of Technical Knowledge. The letter stated that due to this unsuccessful rating during the PIP, an Agency official would be proposing a demotion from Complainant’s current position. 4. On or about July 27, 2018, Complainant’s 2017 PMAP was incomplete.3 After an investigation into the accepted claims,4 the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, Agency submitted a Motion for Summary Judgment, and Complainant filed a response. On March 19, 2020, over Complainant’s objection, the AJ issued a decision by summary judgment in favor of the Agency. The instant appeal followed. 3 The record indicates that claims 3 and 4 were included after the assigned EEOC Administrative Judge granted, on May 1, 2019, Complainant’s request to amend her formal complaint. 4 The record indicates that Complainant’s formal complaint included another claim that the Agency dismissed on procedural grounds. Complainant does not dispute the dismissal of this claim on appeal. Therefore, we need not address this claim in our decision. 2020004567 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Complainant does not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the AJ’s decision on appeal. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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. 2020004567 4 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. 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). Our review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Claim 1 - Placement on a PIP S1 (African American, USA) testified that Complainant’s assigned duties from January 1, 2017 through May 16, 2017, changed after Complainant requested to become the Lead of the Intermural Research Program in May 2017. Because Complainant’s request was approved, S1 indicated that she reassigned projects among the team and Complainant had different duties for the period of May 16, 2017 through December 31, 2017. Additionally, S2 (African American, USA) clarified that three of Complainant’s initial five assignments were reassigned to other staff following her becoming the Lead of the Intermural Research Program. S1 explained, as corroborated by S2’s testimony, that during the 2017 performance period, Complainant did not meet the minimum performance standard for critical elements (1) Program and Project Management and (2) Technical Knowledge and Competency, despite S1 and S2 providing Complainant feedback on her performance. Specifically, S1 explained that Complainant’s performance problems related to her failure to properly manage and process the Pregnancy Exposure Requests in 2017, which was not discovered until January 2018. S1 indicated that she conducted an audit of the pregnancy exposure log and mailbox after Complainant had indicated in a January 2018 report that no Pregnancy Exposures Requests were received in 2017. Contrary to the findings stated in Complainant’s report, S1 stated that her audit findings confirmed that Complainant had failed to process requests dating back to January 2017. S1 then consulted with Human Resources and decided to place Complainant on a PIP to provide her additional time to improve her performance and complete assignments in lieu of giving Complainant a final rating. During the March 1, 2018 meeting, S1 explained that Complainant requested examples of why she was being placed on a PIP which S1 stated that she provided. S1 stated that she informed Complainant that she (1) failed to process and manage the pregnancy exposure registries and (2) she failed to complete two manuscripts that she requested to write. Regarding the feedback provided in the mid-year 2017 PMAP about Complainant’s written communication, S1 explained that the feedback she provided was reviewed by HR prior to issuance to Complainant. 2020004567 5 Additionally, S1 denied that she made negative comments about Complainant’s use of English grammar and punctuation, but she acknowledged that any discussion of Complainant’s written work products was “done in a helpful tone to help her with the edits.” The record supports that S1 had reason to provide Complainant guidance on her written communications. Complainant’s co-worker (“CW1”) testified that Complainant’s “written communication is oftentimes unclear with poor grammar and syntax, at times this has led to confusion on the part of those who receive emails.” To resolve this issue, CW1 stated that S1 requested on several occasions that either she or S1 review Complainant’s written communication “to ensure understandability.” In total, CW1 indicated that she had reviewed four or five of Complainant’s emails. Despite these issues, S1 noted that while effective oral and written communication was part of Complainant’s job (Critical Element 3), it was not identified as an area Complainant failed to meet the minimum standard of performance in the PIP. S1 and S2 also addressed the three new projects (a blog assignment and two narratives) that Complainant asserts were never previously discussed or assigned to her during her initial 2017 PMAP period covering January 2017 through December 2017. S1 explained that the new assignments were extensions of Complainant’s work and that S1 provided Complainant clarification in writing as to how these assignments related to her work functions. S2 also noted that the personnel office informed S1 that the PIP period “did not mean that all of [Complainant’s] other work was to stop or should be reassigned to other staff,” and consequently, Complainant was only asked to complete tasks that were consistent with her on- going responsibilities. Specifically, S1 stated that the blog assignment was a one-time assignment that was to be one page in length, and it was based on Complainant’s manuscript which she requested to write. S1 explained that the blog was “an opportunity to showcase [Complainant] and her work to a larger and more diverse audience.” Complainant was instructed to work with S2 on the blog but refused. S1 further explained that the other two new assignments, drafting two narratives for the biomarker and emerging technology sections of the Research Roadmap, were directly related to Complainant’s Program Manager duties. As the Program Manager, S1 stated that Complainant was responsible for informing potential applicants of the funding criteria. S1 observed, however, that a review of the FY 18 Intramural Research Programs revealed that the OWH had not effectively communicated what types of projects would be funded and at what stage research for biomarkers and emerging technology would begin. To resolve this issue, Complainant was assigned to revise the introductory narratives for the biomarkers and emergency technology to clarify what type of projects OWH would fund and the state OWH would enter the research arena. S1 also denied requiring Complainant to complete all her writing assignments within a six-week period. S1 explained that the PIP extended the end of Complainant’s 2017 performance rating period from December 31, 2017 to May 5, 2018. Consequently, Complainant had eighteen months to complete Manuscript 1, which she had started in September 2016, and she had thirteen months to complete Manuscript 2 which she started in April 2017. 2020004567 6 S1 indicated that during the PIP period, S1 was on sick leave from March 21, 2018 through May 31, 2018, and Complainant was instructed to report to S2. It was S1’s understanding, however, that Complainant declined to discuss the PIP with S2. Finally, S1 disputed Complainant’s assertion that she was not provided any assistance with performing her tasks. S1 indicated that Complainant received assistance from the R&D Team, Complainant had a back-up employee assigned to each of her major projects including the Intramural Program and the Pregnancy Registry, and her other major assignments were reassigned when she assumed responsibility as the Lead for the Intramural Research Program. Claim 2 - Assignment of Duties Both S1 and S2 testified that Complainant was not personally responsible for completing all tasks listed on the RACI Matrix and denied that Complainant was assigned 52 tasks. S1 explained that the RACI Matrix was a tool provided by a strategic planning consultant to help outline the roles and responsibilities for projects. S1 and S2 also clarified that Complainant became the Program Lead for the Intramural Research Program in May 2017, after she requested this position. S1 indicated that as the Program Lead, Complainant was responsible for general oversight and management of the program, but Complainant was not responsible for completing all tasks under her oversight. S1 disputed Complainant’s assertion that S1 could have assigned the Pregnancy Exposure Registry duties to her co-worker (“CW2” African American) instead because CW2 had held this assignment for years without a medical degree. S1 clarified that CW2 had only previously severed as a “backup” employee for the Lead Pregnancy Exposure Registry, and the previous employee who held the Lead position for the Pregnancy Exposure Registry was another individual who also had a medical degree like Complainant. S1 further explained that Complainant had also previously served as Lead of the Pregnancy Exposure Registry in September 2016, as part of her initial assignments when she started working for the Agency in July 2016, and CW2 was her backup. S2 indicated that CW2 remained Complainant’s backup until CW2 was reassigned in 2017 and another co-worker (“CW3”) was assigned to fill the vacant backup position. However, S2 explained CW3 had a family emergency and retired which resulted in Complainant not having a backup for two months in 2017. Claims 3 and 4 - Notification of Unsuccessful Performance and Incomplete PMAP The record indicates that S2 issued a letter, dated July 27, 2018, to Complainant informing Complainant that she unsuccessfully completed her PIP during the period of March 2, 2018 to July 27, 2018.5 5 The record indicates that on June 15, 2018, Complainant’s PIP period was extended for an additional 60 days and was subsequently extended for a second time. 2020004567 7 The letter indicates that Complainant was placed on a PIP for unacceptable performance on her PMAP in critical elements (1) Program and Program Management and (2) Technical Knowledge and Competency in the 2017 performance year. The letter explains that Complainant performed at the “Fully Successful” level for critical element 1. However, Complainant did not submit the required papers for critical element 2, and was therefore, unsuccessful. The letter states that Complainant’s overall performance rating for the PIP was changed and reflected an “unsuccessful rating.” Consequently, S2 indicated that she would propose that Complainant be demoted from a GS 14 to a GS 13. The record reflects, however, that S2 did not continue with the proposed demotion due to a discrepancy in the computation of Complainant’s PMAP score. A copy of Complainant’s 2017 PMAP, signed on July 27, 2018, reflects that she received an overall rating of 2.5, indicating that Complainant “partially achieved expected results.” Consequently, Complainant’s PMAP score did not reflect an “achieved unsatisfactory results” rating to justify a demotion. Additionally, Complainant notified S2 on August 7, 2018, that she was only rated on four out of the five critical elements. Subsequently, S2 acknowledged that she “typically did not give a numerical rating to employees under [the “Administrative Requirements” category]. However, S2 granted Complainant’s request, rated Complainant at a 3 (Achieved Expected results) for the Administrative Requirements category which ultimately adjusted Complainant’s PMAP rating to a total score of 2.6 for 2017. On August 7, 2018, S2 signed an addendum to Complainant official 2017 PMAP reflecting that her overall PMAP score was 2.6 which officially closed out Complainant’s 2017 PMAP. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race and national origin. Harassment To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 - in this case, her race and national origin. 2020004567 8 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s claims 1 through 4 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race or national origin. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION After careful review of the record, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED. 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. 2020004567 9 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. 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 December 29, 2020 Date