U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sanjuanita A.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency. Appeal No. 2020000710 Agency No. HHS-AHRQ-0046-2018 DECISION On October 9, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 9, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Health Scientist Administrator, GS-14, at the Agency’s Agency for Healthcare Research and Quality Center, Office of the Secretary, in Rockville, Maryland. On January 30, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: 1. from 2006 through present, she has been paid less than Caucasian female employees for performing substantially similar work; and 2. on February 14, 2018, she received an unfair Performance Management Appraisal Plan (PMAP) for 2017.2 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. 2020000710 2 Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge. However, Complainant subsequently withdrew this request. On September 9, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination or retaliatory was established. The instant appeal followed. ANALYSIS AND FINDINGS 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that from 2006 through present, she has been paid less than Caucasian female employees for performing substantially similar work. Specifically, Complainant, a GS-14, maintained that she performs substantially similar work that is performed by her supervisor (Caucasian female), GS-15, as well as the Medical Officer (Caucasian female), GS-14. Complainant claimed that all three of them oversee contracts and grants, and work on other projects as assigned. She noted that the nature of the contracts and grants varies over time but asserts the work on them is essentially the same. Furthermore, Complainant stated that she has a larger portfolio of grants than the supervisor. She added that she has no supervisory responsibilities, while the supervisor supervises three employees. The Division of Practice Improvement (DPI) Deputy Director (Caucasian female) stated that during the relevant period, she was Complainant’s supervisor. She asserted that she has many more responsibilities than Complainant. The supervisor agreed that Complainant has more grants, but noted she had a larger contract than Complainant. The supervisor emphasized that she has a GS-15 position because she is a supervisor, while Complainant has no supervisory responsibilities. 2 The record reflects that claim 2 was later amended to the instant formal complaint. 2020000710 3 The Director (Caucasian male), also Complainant’s second level supervisor, stated that one of the major differences between Complainant’s position and the Deputy Director’s position is the Deputy Director’s supervisory status. As the Deputy Director, her responsibilities include preparing plans, conducting appraisals, helping employees with career development and managing responsibilities in the operational aspects of running DIP. He also noted that Human Capital and talent management is a major part of the Deputy Director’s job. The Director stated that Complainant has no supervisory responsibilities and their positions are not substantially similar. The CEPI Director (Caucasian female), also Complainant’s third level supervisor, stated that Complainant’s position and the Medical Officer are not substantially similar although they both occupy GS-14 positions. Specifically, she stated that the Medical Officer is a medical doctor with a specialty in obstetrics and gynecology. The Director stated that the Medical Officer is not in Complainant’s division but is assigned to the EPC Division. As a Medical Officer, her responsibilities are providing scientific oversight and oversees preparation of EPC reports which are technical and require her clinical knowledge. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. The weight of the evidence establishes that Complainant’s race played no role in the difference in grade between herself and her supervisor. Rather, it was the factor of supervisory responsibilities, that Complainant did not have, that resulted in the difference in grade. In addition, although it appears both she and the Medical Director were the same grade, the evidence clearly shows they did not have the same responsibilities. Regarding claim 2, Complainant alleged that on February 14, 2018, she received an unfair PMAP for 2017. She asserted it was in retaliation for engaging in protected activity. Complainant asserted that in April 2017 she met with the CEPI Director to discuss the lack of African American females at the GS-15 level. She engaged in EEO counseling and an unsuccessful mediation session over the issue around June 2017. Complainant believes her immediate supervisor and the Director retaliated against her for this activity by lowering her performance appraisal. The supervisor explained that during 2017, there was a drastic drop in Complainant’s performance. She noted that in 2016, Complainant had received a PMAP rating of 3.67 “Achieved More than Expected Results.” She stated that in 2017, she was assigned a new body of work (“shared decision-making”) recognizing that as a GS-14, Step 10, she was a senior level employee and should work independently. The supervisor averred that she and the Director were looking for Complainant to take a leadership role in shared decision-making and to pitch concepts for funding as well as build a research and framework. She said she thought Complainant would welcome the opportunity for higher level work as she knew of her desire for a GS-15 position. She stated, however, Complainant did not do what they asked of her. 2020000710 4 As a result, she received a summary rating of 2.3 (“Partially Achieved Expected Results”). The supervisor stated that in her narrative in Complainant’s PMAP performance as an accurate explanation of the reasons for Complainant’s performance rating. A copy of this narrative, as well as Complainant’s accomplishment report, with responses noted by the supervisor in red, is in the record. The Director stated that he joined the Deputy Director in the discussions with the employees she supervises. The Director noted that Complainant provided the Deputy Director with a self- assessment which the Director reviewed with her. He stated he read the narrative the Deputy Director prepared for Complainant’s 2017 PMAP and gave her some feedback. He agreed that Complainant had only partially achieved the expected results in two elements of her PMAP performance plan for the reasons stated in the appraisal narrative prepared by the Deputy Director. The Director stated that during the relevant rating period Complainant was made aware of her performance problems and he was involved in conversations the Deputy Director had with Complainant about these deficiencies. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. It is undisputed that the assignment of Complainant to higher level duties and the resulting lowered performance rating followed closely after Complainant’s protected activity. However, it appears that especially in light of Complainant’s expressed desire for a promotion that it was reasonable for her management to provide her with opportunities to show her readiness for advancement. Complainant’s position was capped at the GS-14 level and she needed to compete for a GS-15. Her successful completion of higher-level duties would increase her ability to compete for those positions. Complainant did not provide adequate evidence to counter the explanation of her performance problems in her appraisal. In sum, she simply did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination or unlawful retaliation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020000710 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). 2020000710 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 May 19, 2021 Date
