U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Summer F.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency. Appeal No. 2021001421 Hearing No. 531-2020-00013X Agency No. HHS-CMS-0088-2019 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 27, 2020 final order concerning an 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. During the relevant time, Complainant was employed by the Agency as a Health Insurance Specialist, GS-13, at the Agency’s Division of Pharmacy (DP), Disabled and Elderly Health Programs (DEHPG), Center for Medicaid and CHIP Services (CMCS), in Baltimore, Maryland. On February 7, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency based on race (African American) and in reprisal for prior EEO activity (reported discrimination to management on November 1, 2018) when: 1. On an unknown date in 2017 and December 12, 2017, the former Deputy Director, Division of Pharmacy (DP), DEHPG, and CMCS failed to intervene after Complainant reported co-worker (CW-1) and several other co-workers repeatedly called Complainant “bourgeois;” 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. 2021001421 2 2. On July 21, 2017, the former Deputy Director failed to intervene after Complainant reported CW-1 and several other co-workers took credit for Complainant’s work products and ideas; 3. On January 25, 2018, the former Deputy Director failed to intervene after Complainant reported several co-workers omitted Complainant’s work product from a group project; 4. On February 7, 2018, the former Deputy Director failed to intervene after Complainant reported several co-workers excluded Complainant from a group conference call; 5. On August 7, 2018, the Director, Division of Pharmacy failed to respond appropriately after Complainant reported she overheard CW-1 tell a colleague that CW-1 wanted to smack Complainant; 6. On October 10, 2018, the Acting Deputy Director failed to intervene after Complainant reported CW- negatively characterized Complainant during a team meeting and stated “[Complainant] doesn’t know what she’s talking about;” 7. On October 15, 2018, the Acting Deputy Director failed to intervene after witnessing CW-1 stated Complainant had an “attitude;” 8. On October 17, 2018, the Acting Deputy Director failed to intervene after Complainant reported CW-1 emailed Complainant and accused her of purposefully withholding information; 9. On October 30, 2018 and November 7, 2018, the Acting Deputy Director failed to intervene after Complainant reported CW-1 prevented Complainant from completing her duties and responsibilities; 10. On November 7 and 19, 2018, December 4 and 20, 2018, and January 7, 2019, the Acting Director failed to intervene after Complainant reported CW-1 refused to approve Complainant’s access request for the Drug Data Reporting System (DDRS); 11. On November 19, 2018, December 4 and 20, 2018, and January 7, 2019, the Acting Director failed to intervene after Complainant reported CW-2 ignored Complainant’s request for information on gaining access to a portal; 12. On February 4, 2019, the Acting Director failed to intervene after Complainant reported CW-1 harassed her via email; 13. On February 5, 2019, the Acting Director failed to intervene after Complainant reported CW-1 removed her super user access; 2021001421 3 14. Since March 6, 2019, the Acting Deputy Director failed to intervene after Complainant reported CW-1 removed Complainant’s super user access; 15. On March 11, 2019, the Acting Deputy Director demanded Complainant immediately produce Standard Operating Procedures (SOP) for completing overrides; and 16. On March 13, 2019, the Acting Deputy Director failed to intervene after Complainant reported several co-workers excluded Complainant from a group conference call. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision finding no discrimination The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 has 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 for Complainant. Regarding the merits of the subject claims, we find that the AJ properly found no discrimination regarding all the claims, as elucidated further below. Regarding claim 1, the AJ noted that Complainant was a member of the Division of Pharmacy’s Rebate Systems Team (RST). In 2017, there was a conversation among two co-workers and Complainant. Complainant claimed that CW-1 called her “bourgeois.” 2021001421 4 Thereafter, Complainant notified the former Deputy Director, also her supervisor (“S1”) that she was offended by the word. S1 met with CW-1 following the incident and that she needed to be careful about what was said to one another and that everyone has to be processional. Regarding claim 2, Complainant claimed S1 failed to intervene after she reported CW-1 and several other co-workers took credit for Complainant’s work products and ideas. According to S1, she asked Complainant’s team members about their interactions with Complainant in developing the program, they had difficulty working with her because she used technical language and referred to processes that they did not understand. After Complainant shared her concerns with S1, she told Complainant needed to speak in in more lay terms so the team could understand what she was telling them. Regarding 3, Complainant reported several co-workers omitted Complainant’s work product from a group project, the members of the RBT assisted with the user access testing. The test results needed to be logged into the JIRA system which logs and tracks issues and/or requirements for project management and systems development. In addition to JIRA, Complainant created an additional detailed spreadsheet for internal use to cataloguing the same results. Those working on the project complained that the duplicative process of entering information into Complainant’s spreadsheet and JIRA was causing a backup. Due to the volume of information needed to be integrated as well the need to get information to the contractors quickly, those working discussed the data collection process and as a group, decided to enter information directly into JIRA first, then enter it onto Complainant’s spreadsheet. Further, Complainant claimed that on February 7, 2018, RBT met prior to the group meeting with S1 to ambush her. However, the RBT asserted that they did not have a meeting (claim 4). Regarding claim 5, on August 7, 2018, Complainant and CW-1 attended a meeting concerning user management issues. CW-1 became very frustrated because she felt that if one co-worker did not agree with Complainant in any manner during a meeting, Complainant would berate the individual until that employee agreed with her. While leaving the meeting, a co-worker (CW-2) noticed CW-1 was upset and asked her if she was all right. CW-1 replied “Complainant better not stop using that tone with me or I am going to smack her.” Thereafter, Complainant reported the issue to S2 and then Acting Deputy Director (“ADD”). Based on the Labor and Employment team advice, S2 decided that CW-2 should be verbally counseled, and that a written counseling memorandum should be kept on file. However, the Labor and Employment team never drafted the written counseling memorandum. In addition, S2 gave both Complainant and CW-1 a copy of the Agency’s collective bargaining agreement emphasizing employees’ obligation to treat one another with mutual respect. Regarding claims 6 and 7, the AJ noted that Complainant claimed CW-1 negatively characterized her during a team meeting and stated “[Complainant] doesn’t know what she’s talking about” and stated Complainant had an “attitude.” Beginning October 2016, S2 reassigned Complainant from the RBT to work on the Drug Reporting component of the Medicare drug project. According to ADD, she stated that moving Complainant to Drug Reporting was beneficial because it minimized the interaction between Complainant and the rest of the RST. 2021001421 5 Regarding claim 8, Complainant stated that during a user management related discussion concerning October 17, 2018, Complainant referred to updated flow screens involving necessary user access information while providing her input. The screens had not been shared with CW-1. The ADD stated that she does not think it is unreasonable to ask a team member to share the information that the team member has, with other members of the team, rather than require each person to go into a system that is not easy to navigate. She explained if someone has access to the information and can either share it with others or send them the link which would be the proper way to do, as opposed to telling everyone where it is. Regarding claims 9 - 11, the ADD stated although she had meetings with Complainant on October 30, 2018 and November 7, 2018, she believed these meetings were held to discuss making some changes to Complainant’s responsibilities. She noted that Complainant did not seem enthused with the changes but agreed to them. The ADD recalled there were access issues, but she does not recall Complainant reporting that CW-1 refused to give her access. She asserted that she does not recall Complainant telling her that her access was being held up causing her not to be able to do her work. Moreover, the ADD stated that she does not recall Complainant reporting CW-2 ignored her request for information on gaining access to a portal. In claims 12 and 13, the ADD stated that Complainant was responsible for shutting down their system when rebates ran. In this particular incident, she stated that Complainant did not send out an advance notice to everyone giving them a “heads up.” The ADD noted that CW-1 happened to be still in the system and sent an email to the entire division stating that she was not notified of advance notice of the system shutting down. After Complainant shared her concerns relating to the CW-1’s done of her email, she advised her that she would speak with CW-1. In addition, the ADD indicated that she thought it would be a good idea to implement a new step in the protocol to ensure that notice was given especially if such a step had not been consistent in the past. Regarding claim 14, Complainant reported to the ADD that her super user access had been removed. Upon learning this, she investigated the situation and asked CW-1 why she had removed Complainant’s access. In response, CW-1 stated that she had done at the request of the Technical Director for Drug Utilization Review (“DUR”). ADD stated that based on an email correspondence, the Technical Director’s reasoning for requesting this was because Complainant was not going to be approving users in the system any longer and and she therefore no longer needed that level of access. ADD sent an email to Complainant explaining that CW-1 was not acting on her own but was acting in accordance with the Technical Director’s request. She also indicated to Complainant that she was not pleased with the way this situation and wished the Technical Director had addressed it with her in advance instead of being blindsided by it. In claim 15, ADD stated that on March 6, 2019, she sent Complainant an email explaining that she would like to make sure that the Standard Operation Procedures (“SOP”) for the override process is up to date before you leave DP. She asserted that there was nothing within the email showing that she “demanded” anything from Complainant. 2021001421 6 Regarding claim 16, the record reflects that working relations between the DP staff, DEBS staff, and the contractor had eroded. In an effort to rebuild relationships between the three units, a retreat was held on February 27, 2019. At the time of the March 13, 2019 pre-meeting was scheduled, Complainant was scheduled to leave DP, as her last day with DP was set for March 14, 2019. The ADD felt Complainant’s time was better directed on other assignments that needed to be completed before she left the division. Moreover, the ADD did not believe Complainant’s construction to the March 13, 2019 pre-meeting would be necessary. Based on a review of the record in its entirety, the AJ determined there are no genuine disputes as to the material facts of this case, and summary judgment in favor of the Agency was appropriate. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven race discrimination or unlawful retaliation by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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 2021001421 7 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. 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. 2021001421 8 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 March 3, 2022 Date
