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

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020002942 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Illa S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2020002942 Hearing No. 531-2019-00058X Agency No. HHS-NIH-NHLBI-119-17 DECISION On March 11, 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 3, 2020,2 final decision 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 decision. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination on the bases of (Caucasian), sex (female), religion (Catholic), color (white), age (over 40), when: Complainant’s supervisor did not attend follow up meetings with her to discuss a 60-day performance improvement plan; and subsequently issued her a proposed removal. 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 Though mailed on March 3, 2020, the Agency’s final decision is dated February 17, 2020. 2020002942 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Extramural Support Assistant, GS-0303-06, at the Agency’s National Heart, Lung, and Blood Institute, Division of Cardiovascular Sciences in Bethesda, Maryland. On August 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), religion (Catholic), color (white), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967 when: 1. As of June 2017, Complainant’s first level supervisor (S1) did not attend follow up meetings with Complainant to discuss a 60-day performance improvement plan (PIP) that S1 had issued to Complainant on March 9, 2017; and 2. On June 23, 2017, S1 issued Complainant a proposed removal in retaliation for a sick leave request, stating that Complainant’s performance was unacceptable for failure to adhere to the March 9, 2017, 60-day PIP. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ subsequently denied the hearing request on the grounds that Complainant had repeatedly failed to comply with the AJ’s orders. Consequently, the AJ remanded the complaint to the Agency for the issuance of a final agency decision (final decision) on the merits of the complaint. On March 3, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which found that Complainant had failed to prove her allegations. With regard to claim 1, the Agency determined that S1 had legitimate, nondiscriminatory for issuing Complainant the PIP, and found that contrary to Complainant’s assertions, S1 had always made herself available to Complainant. Though the Agency considered Complainant’s rebuttal that there was nothing wrong with her work, and that evidence of pretext could be seen in S1’s repeated failure to attend follow up meetings to discuss the PIP, the Agency concluded that Complainant’s allegations were unsubstantiated and insufficient to demonstrate pretext. As for claim 2, concerning the proposed removal, the Agency determined that the proposal was based on Complainant’s poor performance during the PIP, as evidenced by Complainant’s repeated errors and her refusal to acknowledge her errors. While the Agency considered Complainant’s contention that there was no problem with her work and that S1 was at fault for her inability to supervise employees, the Agency rejected these arguments as insufficient to demonstrate pretext. The instant appeal followed. 2020002942 3 CONTENTIONS ON APPEAL Neither Complainant nor the Agency filed any contentions on appeal. 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 For Complainant to prevail in a claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, concerning S1’s alleged failure to attend follow up meetings with Complainant, S1 explained that she put Complainant on a PIP because she had serious concerns about Complainant’s performance. S1 maintained that during the 60-day PIP period, she set aside time on her calendar every Monday from noon to 01:00 p.m. to meet within Complainant, if Complainant needed; however, Complainant only met with her once, and, after that, did not ask her for any further guidance or clarification. S1 emphasized that it was Complainant’s responsibility to come see her, if Complainant had any questions or needed help. 2020002942 4 With regard to claim 2, S1 maintained that she proposed Complainant’s removal because Complainant failed to demonstrate acceptable performance during the PIP period. In this regard, S1 explained that during the PIP period, Complainant continued to make numerous errors, such as, but not limited to the following: failing to follow instructions from the Administrative Officer regarding the travel authorization system; misrouting memoranda entered into the TRAC system; and mishandling travel arrangements and email lists. S1 explained that she worked with human resources to prepare the proposed removal. S1 emphasized that the proposal had nothing to do with Complainant’s sick leave request. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant asserted that S1’s articulated reason in claim 1 was pretext for discrimination because S1, in practice, was unavailable to meet every Monday, as S1 was usually out of the office or in meetings. Complainant also disputed S1’s characterization of her work and maintained that there was nothing wrong with her performance. Complainant further asserted that S1 was unqualified to “conduct herself in a professional [Performance Management Appraisal Program (PMAP)] discussion and follow up PIP discussions.” In this regard, Complainant emphasized that S1 had a tendency to lose track of most things and probably forgot what Complainant’s duties were. ROI at 75-76. For claim 2, Complainant contended that there was a causal link between the proposal to remove and her sick leave usage because S1 issued the proposal the day after she had taken sick leave to undergo dental treatment for wisdom tooth pain. When asked during the EEO investigation why she believed that the proposal to remove was based on her race, color, sex, age, and religion, Complainant explained that “she put all the information down” and an employee in the EEO Office picked the bases. Complainant emphasized that the discrimination was based on “who I am and what I do in the office,” and she noted that she was the only Caucasian support staff member in the office. Complainant also expressed her belief that the proposal to remove was based on reprisal because there was no consideration “of [her] PMAP when they hired [a] contractor” to take over her duties. ROI at 76-77. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). 2020002942 5 Having reviewed the record, we are unpersuaded by Complainant’s offer of pretext with regard to claim 1, as Complainant has not persuasively shown that S1’s failure to meet with her, even if true, was due to her protected bases. As for the proposed removal in claim 2, we are also disinclined to find pretext, as S1’s articulated concerns about Complainant’s performance during the PIP are consistent with the concerns expressed by disinterested third parties. ROI at 203, 208-09, and 213-14. We further find no causal link between Complainant’s sick leave request and the issuance of the proposal the following day, as the record clearly shows that the Agency initiated the removal process prior to Complainant’s sick leave request. ROI at 114-115. Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination as alleged. 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 (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. 2020002942 6 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. 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. 2020002942 7 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 9, 2021 Date