[Redacted], Kelly C., 1 Complainant,v.Norris Cochran, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020004164 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelly C.,1 Complainant, v. Norris Cochran, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020004164 Hearing No. 443-2017-00151X Agency No. HHS-IHS-0484-2016 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 Agency’s March 25, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director, Public Health Nursing, GS-12, at the Agency’s facility in Belcourt, North Dakota. On November 25, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her, and subjected her to a hostile work environment, on the bases of her national origin (European), color (white), age (57 at the relevant time), and in reprisal for prior protected EEO activity when: 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to non-parties and the Commission’s website. 2020004164 2 1) In July 2016, she learned that her supervisor (S1) had rescinded an award she had previously approved, even though Complainant had to submit the award a total of three times; 2) On October 12, 2016, she learned that she had been removed from the executive committee although every other member of the executive committee, at that time, had served on the governing board committee with her and she had been a member of the governing board committee since 1993; 3) On November 2, 2016, she learned that her department would be losing their break room, although the department had previously lost both their counseling and storage rooms, and learned that S1 made the decision to move the department to a building with less space outside of the hospital; 4) She was denied due process when the human resources department (HR) failed to make her aware of her appeal rights and responsibilities and, consequently, she was unable to timely submit an appeal of her previous desk audit; 5) Complainant, unlike other Native American staff, was not promoted to the same or equivalent grade as higher-paid subordinates she was made to supervise; and 6) She has been denied promotions on an ongoing basis since the arrival of S1, because Complainant’s mother is Caucasian, which is the reason staff refer to her as “an apple.” 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 requested a hearing. The AJ assigned to the case found that, after viewing the evidence in a light most favorable to Complainant, a decision without a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a decision without a hearing on February 11, 2020, finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that she was subjected to unlawful discrimination and argues that the AJ erred in issuing a decision without a hearing as there are material facts in dispute. ANALYSIS AND FINDINGS As an initial matter we note that, as this is an appeal from a final 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). 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. 2020004164 3 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of an administrative proceeding, an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). After a careful review of the record, the Commission finds that a decision without a hearing was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim, Complainant 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima facie case of discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows that Complainant has been the Director of Public Health Nursing since 1993 and that S1 has been her first-line supervisor since 2011. With respect to claim (1), the record shows that at the time Complainant first submitted her award recommendation for her staff’s immunization work, S1 was on detail assignment away from the facility. Upon her return, S1 states that she asked Complainant to resubmit the recommendation, but after review, she determined that the justification provided did not meet the level required to be recognized by a time-off award. As such, S1 states that she did not approve the award. As to claim (2), the record shows that in September 2016, the bylaws determining the membership of governing bodies at Complainant’s facility were revised, and in accordance with the new bylaws, S1 created an executive committee with the required members set out in the bylaws. The required members did not include Complainant as director of public health nursing. Instead, the bylaws required Complainant’s membership on the quality assurance/performance improvement committee. With respect to claim (3), the record shows that in November 2016, the facility was required to establish several new server rooms. In order to accomplish this, the contractors determined that the public health nursing breakroom would be one of the rooms converted to a server room. 2020004164 4 Subsequently, management determined that a lack of space required the construction of a new building. The record shows that S1 moved both the public health nursing department and the office of environmental health to the new location outside of the main hospital building because the focus of their missions is to perform community outreach and not direct patient care. As to claim (4), the record shows that Complainant requested a desk audit of her position in November 2015, which found that her position was properly classified at the GS-12 level. The record further shows that Complainant was provided with information as to her appeal rights in the text of the audit decision, but did not contact the HR official until March 2016, to inquire as to how the results of the audit had been determined. In September 2016, Complainant attempted to challenge the audit results, but HR reviewed the results and affirmed that her position had been properly classified. With respect to claim (5), Complainant requested a promotion to the GS-13 level, stating that the director of nursing position had been upgraded to that level years earlier and that she was supervising a GS-13 employee. The record shows, however, that no employees in Complainant’s position are graded above the GS-12 level and that Complainant was not supervising any GS-13 employees. Complainant did supervise someone who was in a “saved” GS-13 level as a result of a Merit Systems Protection Board settlement, but that position was not a position classified as a GS-13. Further, with respect to claim (6), the record shows that the highest grade level for an employee in the position of director of public health nursing is GS-12, as supported by the findings of her desk audit, and that Complainant had reached the highest pay level for her position as a GS- 12 step 10. We concur with the AJ’s finding that Complainant failed to show that any of the Agency’s articulated reasons for its actions were pretextual or were motivated by discriminatory or retaliatory animus. Finally, as to Complainant’s claim that the incidents alleged constitute unlawful harassment, the Commission finds that, since she failed to refute the legitimate, nondiscriminatory reasons proffered by the Agency for its actions, she also failed to establish that such actions were taken for retaliatory (or discriminatory) reasons. Accordingly, we find that Complainant failed to establish that she was subjected to a discriminatory hostile work environment. See Complainant v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000). In so finding, we note that, with respect to Complainant’s claim that staff referred to her as “an apple,” her affidavit references a single incident in 2002 by an employee no longer with the Agency. As such, we find that this allegation does not rise to the level of actionable harassment. CONCLUSION We find that viewing the record evidence in a light most favorable to Complainant, there are no genuine issues of material fact. We further find that the AJ appropriately issued a decision without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision and the Agency’s final order finding no discrimination is AFFIRMED. 2020004164 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). 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. 2020004164 6 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 February 9, 2021 Date