[Redacted], Scarlet S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2020004250 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scarlet S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020004250 Agency No. HHS-SAM-0007-2016 DECISION Complainant timely 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 July 1, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-09, at the Agency's Human Resources Liaison Data Branch, Office of Management Technology and Operations, Substance Abuse and Mental Health Services Administration facility in Rockville, Maryland. Report of Investigation (ROI) at 68. According to Complainant, on June 30, 2016, she met with her first-level supervisor (Supervisor) who told her that she was not receiving a promotion because she was not working independently; relied too heavily on her partner; made too many errors; could not handle complicated work; and was not working at the higher-grade level. ROI at 202. Complainant stated that Supervisor wanted her to demonstrate that she was capable of handling work at the higher grade for six months before Supervisor would consider a promotion. Id. 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. 2020004250 2 In response, Supervisor explained that Complainant met the time and grade requirements to be eligible for a career ladder promotion but her performance, at that time, did not demonstrate the potential to perform the duties at the GS-11 grade-level. Id. at 305. Supervisor added that she issued Complainant a career ladder memorandum indicating specific areas of improvement that she would assess in another six months. Id. Supervisor averred that Complainant was nevertheless promoted to the GS-11 grade-level at the conclusion of her six-month review period on January 8, 2017. Id. Complainant’s second-level supervisor, the Director of Division of Management Services (Director), stated that she was aware that Complainant's career ladder promotion was being delayed until her performance was at the level where she would be eligible. Director averred that Supervisor created a six-month performance plan for Complainant, which she has done for other staff members. Id. at 567. Director explained that performance plans are a common management practice to help employees reach promotion objectives. Id. She affirmed that Complainant fulfilled the requirements of her performance plan and has since been promoted. Id. In her rebuttal, Complainant argued that Supervisor did not address her performance issues prior to June 30, 2016. She also stated that the only other employee issued a performance plan by Supervisor was her coworker (Coworker) (male, Puerto Rican). Id. at 279. But he only had to demonstrate performance at a higher-level for two months after becoming eligible prior to receiving his promotion. Id. According to Supervisor, Complainant was promoted to the Management Analyst, GS-11, position to perform Human Resources (HR) Liaison Duties at the Full Performance Level (FPL) of GS-12 on January 8, 2017, and Coworker was promoted on December 11, 2016, with the FPL of GS-11. Supplemental Report of Investigation (Supp. ROI) at 29. On November 7, 2016, Complainant filed an EEO complaint alleging 25 claims of discrimination and harassment on the bases of national origin (Mexican), disability (perceived mental), age (52), and reprisal for prior protected EEO activity.2 Following 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In EEOC Appeal No. 0120180731 (Sept. 19, 2019),3 we affirmed the Agency’s decision finding of no discrimination with the exception of the duplicate claims of 3 and 25 wherein Complainant alleged that she was denied a promotion to the position of Management Analyst, GS-11, on June 2 Complainant maintained that her August 8, 2016, EEO Counselor contact constituted as her prior protected EEO activity with regard to the instant complaint. However, the record reflects that Complainant first contacted the Agency’s EEO office on July 26, 2016. ROI at 69. 3 We denied the Agency’s request for reconsideration in EEOC Request No. 2020001083 (May 8, 2020). 2020004250 3 30, 2016. We found that the record was not fully developed with regard to the promotion allegation, and therefore remanded the duplicate claims 3 and 25 for the Agency to conduct a supplemental investigation and issue a new final decision addressing the merits of these claims. We specifically noted that the Agency's investigation did not address Complainant's specific assertion that, where she was required to demonstrate higher-level performance over a six-month period, Coworker only had to demonstrate a higher-level performance for two months before being promoted to the Management Analyst position at the GS-11 grade-level. As such, we ordered the Agency to conduct a supplemental investigation to: 1. [O]btain an affidavit from Supervisor or another person with knowledge, indicating when Coworker was promoted; whether he was only required to complete a two- month evaluation period; and, if so, why his evaluation period was only two months while Complainant was required to complete a six-month period; and 2. [P]rovide documentation establishing the exact promotion dates of both Complainant and Coworker to GS-11, Management Analyst. The Agency subsequently issued Complainant a copy of its completed supplemental report of investigation, and thereafter issued its second final decision, addressing claims 3 and 25. In its final decision, the Agency found that Complainant did not establish a prima facie case of discrimination with respect to any of her protected classes and did not show that its legitimate, nondiscriminatory reasons were pretextual or that it was motivated by discriminatory or retaliatory animus. In so finding, the Agency explained that six months prior to when Coworker became eligible for promotion on October 2, 2016, an evaluation plan was created for him to ensure that he was meeting the established milestones to be promoted. The Agency noted that when Coworker became eligible for promotion, a two-month evaluation period was then added to ensure that he could fulfill the performance of the position. The Agency also noted that Complainant was nevertheless promoted to the Management Analyst, GS-11, position at the conclusion of her six-month review period on January 8, 2017. The Agency further observed that Complainant was performing HR Liaison duties before her promotion, while Coworker held a non-HR Liaison position before his promotion to the Management Analyst, GS-11, position. The Agency found that Complainant’s and Coworker’s duties and positions were not the same, and that they received a fair assessment of their readiness for promotion. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final decision finding no discrimination. 2020004250 4 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 Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant's Prima Facie Case Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). In the instant case, the record reflects that Complainant did not contact the Agency’s EEO Office until July 26, 2016. ROI at 69. Therefore, Complainant had not engaged in protected EEO activity when Supervisor told her on June 30, 2016, that she wanted Complainant to demonstrate that she was capable of handling work at the higher grade for six months before she would be considered for promotion. Therefore, we find that Complainant did not meet the first prong of the prima facie case of reprisal. 2020004250 5 In order to establish a prima facie case of discrimination based on national origin, age, and disability, Complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). Here, we find that Complainant has not shown that she was treated differently than a similarly situated employee outside of her protected classes. In so finding, we note that the record reflects that Complainant and Coworker performed different positions, working under different Position Descriptions (PDs). Complainant performed the duties of an HR Liaison under PD No. 14M070, prior to her promotion, while Coworker performed non-HR Liaison duties under PD No. 14M036. ROI at 734, 819. We note, moreover, that Coworker was promoted to the Management Analyst, GS-11, with the FPL of GS-11, while Complainant was Promoted with the FPL of GS- 12. ROI at 818, Supp. ROI at 29. Therefore, we find that Complainant has not established that she was similarly situated to Coworker in all relevant material respects. We also find that Complainant did not show that the circumstances surrounding the alleged adverse action gave rise to an inference of discrimination. There is no dispute that Complainant was promoted to the Management Analyst, GS-11, position after her six-month evaluation and she presented no evidence showing that the Agency was motivated by discriminatory animus in delaying her promotion. We note that Director stated that that Supervisor created a six-month performance plan for Complainant, which she has done for other staff members. We also note that Supervisor attested that that six months prior to Coworker’s promotion to the position of Management Analyst, GS-11, an evaluation plan was created for him to ensure that he was meeting the established milestones to be promoted to the GS-11 grade level. The record reflects that Complainant was promoted to the Management Analyst, GS-11, position after a six-month evaluation in a similar manner to Coworker. As Complainant did not establish a prima face case of discrimination with regard to any of her alleged bases, we decline to address the Agency’s burden to articulate a legitimate, nondiscriminatory reason for its actions, and Complainant’s subsequent burden to establish whether the Agency’s reason was pretextual for discrimination. 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 finding no discrimination. 2020004250 6 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). 2020004250 7 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 December 9, 2021 Date