[Redacted], Daisy W., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2020000463 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daisy W.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2020000463 Hearing No. 531-2016-00195X Agency No. HHS-NIH-NEI-019-15 DECISION On September 1, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Administrative Judge’s (AJ) Order concerning Complainant’s 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.2 BACKGROUND During the period at issue, Complainant worked as a Contractor Intramural Research Training Award (IRTA), Biology Trainee, through Astrix Technology Services Corporation for the Agency’s National Eye Institute in Bethesda, 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 Complainant’s appeal is dated September 1, 2019, and it was received on September 23, 2019. It is unclear on what date Complainant mailed her appeal. Therefore, we give the benefit to Complainant that her appeal was submitted on September 1, 2019. 2020000463 2 On February 4, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of national origin (American Egyptian), sex (female), and age (43) when:3 1. From March 2013 to March 2014, Complainant was underpaid, denied training, and treated differently from other workers and was denied a clear explanation of her work assignments; 2. From March 2013, to March 2014, her career was taken lightly, and she was not seriously considered as a scientist or as a woman; 3. In October 2014, her supervisor did not write strong recommendations for her to transition to another lab/career; 4. On October 14, 2014, the Agency informed her that it would not pay her tuition for enrollment at a university; 5. In October 14, 2014, she was informed on numerous occasions that she would not succeed in the lab and that managers would not engage or support her research; and 6. On October 14, 2014, Complainant received a notice of termination. 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 held a hearing April 18-21, 2017, and issued a decision on January 30, 2019. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant does not submit any statements or briefs regarding the instant case. Instead, Complainant inquires about the status of the AJ’s determination. Complainant also submitted a request for extension, which we granted. However, there is no record of Complainant submitting a brief by the deadline provided. 3 The Agency determined, and Complainant does not dispute, that she was raising a claim of national origin discrimination and not race. Additionally, while Complainant also alleged unlawful retaliation in her complaint, that claim was dismissed by the Agency because the record show she did not have any prior protected EEO activity to establish the basis of reprisal. Instead, the reprisal claim was based on her raising of the current claim which was after the actions she alleges had already occurred. As such, we find no error in the Agency’s conclusion that Complainant was unable to establish a prima facie case of unlawful retaliation. 2020000463 3 In reply to Complainant’s appeal, the Agency raises the issues of timeliness and Complainant’s lack of arguments on appeal. ANALYSIS AND FINDINGS As a threshold matter, the Agency brings the timeliness of Complainant’s appeal into question. While the AJ’s decision and Order were issued on January 30, 2019, it was sent to Complainant via email. The Agency does not provide any evidence of when or if Complainant received the AJ’s decision and Order. The record does not contain any evidence that the Agency issued a final decision adopting the AJ’s findings. Additionally, in her submission, Complainant states that she did not receive the AJ’s decision. The Agency bears the burden of establishing that Complainant’s appeal was untimely, the Agency has failed to do so here. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 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 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 2020000463 4 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 three-day hearing, the AJ heard testimony from Complainant and witnesses. After opening arguments, the AJ announced the dismissal of both the claims of reprisal and underpayment. Throughout the hearing, Complainant and the Agency both examined and cross- examined witnesses. Complainant was attempting to enter a joint program between the Agency and a university, in which she could pursue her doctoral degree. During the time she was at the Agency, Complainant was unable to secure acceptance into the necessary joint program. The Agency established, through witness testimony, that it had a legitimate, nondiscriminatory rationale for its actions. Complainant’s supervisors testified that Complainant did not have the requisite laboratory expertise to conduct the work that she originally stated that she intended to do. Additionally, witnesses testified that Complainant was unable to conduct lab work when it came to mice because she was afraid of them and did not want to handle them. The same witness testified that Complainant stopped coming to the lab for a period of time after having an issue dealing with mice. One of her supervisors testified that he asked Complainant to produce a review on nanoparticles or nontechnology in ophthalmology, which could serve as the first chapter of her thesis and aid her first-level supervisor in becoming more familiar with the topic. Complainant never produced the review. In a teleconference to the parties on September 27, 2018, the AJ announced her decision, which was issued to the parties in writing on January 30, 2019. In her decision, the AJ discussed that Complainant’s supervisors testified that they did not believe that her skills and background in biology were sufficient to justify financing Complainant’s Ph.D. or mentoring her work. The AJ found that the opinions of Complainant’s supervisors were warranted, and corroborated, based on the testimony of others who worked in the lab under the same supervisors as Complainant during the period at issue. The AJ found that complainant had failed to demonstrate by a preponderance of the evidence that the Agency unlawfully discriminated against her on any impermissible bases of national origin, sex, or age, or subject Complainant to harassment on any of those bases. As previously noted, Complainant does not make any arguments or statements on appeal. Complainant has failed to demonstrate through substantial evidence that the AJ’s factual findings are erroneous. Additionally, Complainant has not submitted any evidence to contradict witness testimony. We find that Complainant has failed to establish that she was subjected to discrimination or harassment on the bases of national origin, sex, or age. 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 finding of no discrimination. 2020000463 5 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. 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). 2020000463 6 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 July 7, 2021 Date