U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ouida L.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021001388 Hearing No. 410-2019-00003X Agency No. HHS-CDC-0312-2017 DECISION On December 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 22, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was a Senior Behavioral Scientist at the Agency’s Arthritis, Epilepsy, and Well-Being Branch (AEWB), Division of Population Health (DPH), National Center for Chronic Disease Prevention and Health Promotion, Center for Disease Control and Prevention (CDC) in Atlanta, Georgia.2 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 reflects that on December 31, 2017, Complainant retired from Agency employment. 2021001388 2 On July 19, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability, age (over 40) and in reprisal for prior protected EEO activity when: a. On August 5, 2016, management verbally informed Complainant that she would no longer serve in a lead role for the State Arthritis Program, effective August 16, 2016. Complainant was also advised that her responsibilities with the State Arthritis Program would be assumed by a less experienced employee. b. As a result of Complainant being removed as the Lead, she was also immediately removed from the Arthritis Leadership Team. Complainant was also gradually removed from her Applied Behavioral Sciences responsibilities, which included, and extended beyond, the State Arthritis Program, and beyond her lead role. c. In September 2016, management issued a new organizational chart that did not include Complainant’s supervisory duties. d. On March 1, 2017, Complainant learned that the deadline for her Behavioral Science Agenda was changed from July 1, 2017 to March 31, 2017, and management implied that Complainant was delinquent in completing the Project. e. On April 4, 2017, Complainant learned that management had decided to terminate the Self-Management Education (SME) Visibility Campaign Project for which Complainant had served as team lead for five years. Complainant learned on March 30, 2017, that a contract for the project was not being renewed by management, and on April 4, 2017, that the full project was being terminated by management and that select responsibilities from the project were being assigned to another staff member, leaving Complainant with no role on the project. f. On May 3, 2017, the Acting Branch Chief directed Complainant to cancel her CDC conference presentation despite the fact that Complainant had recommended a substitute. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, Complainant filed a Motion for Summary Judgment on May 12, 2019, and the Agency submitted its Motion for Summary Judgment on May 15, 2019. Complainant also submitted a response to the Agency’s Motion. On September 22, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. 2021001388 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment A claim of disparate treatment is examined under the three-party 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). The record developed during the investigation established the following undisputed facts. Complainant identified her disability as rheumatoid arthritis. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. In August 2016, the Acting DPH Director decided to improve AEWB by making the organizational lines within the branch better and decided to have a programmatic team and science team. The Acting PDH Director (“Acting Director”) (over 40), also Complainant’s third-line supervisor, met with Complainant on August 5, 2016 to inform her that the branch needed to correct several organizational issues. 2021001388 4 Specifically, the Acting Director noted the need to establish proper supervisory lines for the State Arthritis Program project officers which were deficient. While Complainant was a Senior Behavioral Scientist, her role with the State Arthritis program was considered temporary and informal, in order to keep the activities moving. The Acting Director further noted that Complainant was not considered a permanent lead. He stated that Complainant was informed that the activities of the State Arthritis Program would be combined with the national partner activities and that she could continue her Senior Behavioral Scientist on the science team. The Acting Director noted that the Team Lead would be her immediate supervisor. Complainant claimed that the Lead Public Health Advisor and the Team Lead for Epidemiology, Surveillance, Research & Dissemination Team, Arthritis Program were treated more favorably than her. However, the Acting Director stated that the Lead Pubic Health Advisor had more than fifteen years of experience in public health and well-experience to carry out program monitoring activities, while the Team Lead was a higher grade than Complainant and worked in a supervisor role prior to becoming Complainant’s first-level supervisor. Complainant had never officially worked in a supervisory role or possessed any supervisory duties. Complainant claimed further that she was removed from her role in Applied Behavioral Science and reassigned her responsibilities in the State Arthritis Program to a less experienced employee. However, the Acting Director asserted that Complainant was never removed from her role as a Senior Behavioral Scientist. The Acting Director stated that the decision to combine state and national program activities was based on his charge and responsibilities as acting Branch Chief to determine how to organize the activities of the branch to meet agency’s goals and mission, to assure proper supervisory lines for staff, and to support programmatic and science activities. Complainant also claimed that in September 2016, management issued a new organizational chart that did not include Complainant’s supervisory duties, The Acting Director stated, however, that based on the decision to combine the state and national program activities, a new functional chart was developed to reflect the new organization of the functions and team members. He stated that Complainant’s position of record is a non-supervisory Senior Behavioral Scientist was included under the science team. Complainant claimed that on March 1, 2017, Complainant learned that the deadline for her Behavioral Science Agenda was changed from July 1, 2017 to March 31, 2017, and management implied that Complainant was delinquent in completing the Project. The Acting Director acknowledged attending a meeting that changed the deadline for a draft Behavioral Science Agenda to March 31, 2017. He noted that there was no implication that the project was considered delinquent. Furthermore, the Acting Director explained that his role and responsibilities as Acting Division Director to assure that CDC’s mission and objectives are carried out and to assure appropriate funding of activities. In addition, he noted that Complainant submitted the draft agenda in March 2017, and the Agency was able to secure funding to hire a fellow to work with Complainant. 2021001388 5 The Branch Chief/Supervisory Health Scientist (unknown age) stated that she was present during the subject meeting but did not make the decision to set a deadline of March 31, 2017 for a “draft” agenda. Specifically, she stated that she did not chance the deadline for the final product, and that it was the Team Lead that set the March 31, 2017 deadline to give Division management an idea of progress, plans and needs for the Fiscal year 2017 resources. The Branch Chief asserted that there was no discussion about Complainant being delinquent. Complainant also claimed that on April 4, 2017, she learned that management had decided to terminate the SME Visibility Campaign Project for which Complainant had served as team lead for five years. Complainant learned on March 30, 2017, that a contract for the project was not being renewed by management, and on April 4, 2017, the full project was being terminated by management, and that select responsibilities from the project were being assigned to another staff member, leaving Complainant with no role on the project. The Acting Branch Chief stated that Complainant’s allegation requires many corrections. Specifically, she stated that as the Acting Branch Chief, she was the sole Agency official who made the March 30, 2017 decision to not fund a second optional year (year 3) of a contract related to this project. She further stated that the project itself was not “terminated” and continued into the current fiscal year under different funding mechanisms. Complainant also claimed that the Lead Pubic Health Advisor and two named colleagues were treated more favorably then her. However, the Acting Branch Chief stated that Complainant’s allegation was unfounded because the project was never terminated. She stated at no time during the project did Complainant ever have an official role as the Project Contract Officer Representative. She noted that Complainant was offered an opportunity to continue with the project as a subject matter consultant during the public communication phase, however, she declined it. Finally, Complainant claimed that on May 3, 2017, the Acting Branch Chief directed Complainant to cancel her CDC conference presentation, although Complainant had recommended a substitute (Contract Officer Representative. However, the Acting Branch Chief explained her reasons for requesting that Complainant email a cancellation if she could not find a substitute. The Team Leader stated she would not approve Complainant’s request for the Contract Officer Representative to substitute for Complainant. She stated that as the Acting Branch Chief, she wanted to avoid embarrassing the Agency by a delayed response and to allow time for organizations to reschedule another speaker. The Acting Chief stated that between May 3, 2017 and May 8, 2017, a substitute for Complainant’s presentation slot had been agreed upon by one of the Branch Team Leaders and accepted by the conference organizer. The Acting Branch Chief stated that the Contract Officer Representative was successfully represented the Agency and gave a presentation at the conference in the same session for which Complainant had been scheduled. Here, the undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. 2021001388 6 Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask unlawful discriminatory animus. Harassment To prove her discriminatory harassment claim, 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 disability or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, to the extent that Claims a - f are intended as part of Complainant’s discriminatory harassment claim, we conclude they cannot be considered based on our conclusion, discussed above, that there is no evidence of discriminatory animus as a motivating factor in these matters. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination.3 3 On appeal, Complainant does not challenge the AJ’s Order Granting-in-Part and Denying-In- Part Agency’s Motion to Dismiss dated September 22, 2020 regarding one other claim (that she was discriminated against when on March 9, 2017, Complainant was notified that she could not bring her designed support person to the initial mediation session. We therefore have not addressed this matter in our decision. 2021001388 7 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). 2021001388 8 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 June 7, 2021 Date
