[Redacted], Walter W., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020003922 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Walter W.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020003922 Agency No. HHS-IHS-0415-2019 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 4, 2020, finding no discrimination concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a term employee Accounts Receivable Specialist, GS-09, at Indian Health Service Nashville Area Office. On March 19, 2019, Complainant filed an EEO complaint, which was subsequently amended, alleging that he was subjected to harassment based on race (African-American), sex (male), and in reprisal for prior EEO activity when: 1. On or about June 25, 2018, he was called lazy by a coworker in the billing department. 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. 2020003922 2 2. On or about March 12, 2019, he was advised that he was not approved to attend an Accounts Receivable workshop and that another individual will attend. 3. On or about March 14, 2019, he requested to take an ICD (International Classification of Diseases) 10 coding class and was denied by his supervisor (S1). 4. On March 15, 2019, he declined to sign his PMAP (Performance Management Appraisal Program) due to disagreement with the rating of 2.67 and need for implementation of a Performance Improvement Plan (PIP). 5. On March 29, 2019, his request for a compressed work schedule was denied by S1. 6. On March 27, 2019, S1 spoke to him in an Accounts Receivable staff meeting in a loud and demeaning manner. 7. He was denied and/or delayed overtime by S1 in requests made on April 8, 2019, April 10, 2019, and April 12, 2019. 8. On April 30, 2019, S1 emailed him in response to a desk audit that she is working on reprimands. 9. On May 13, 2019, his request for overtime in the amount of 27 hours was denied by S1. 10. On or about April 1 to 13, 2019, S1 told a coworker that Complainant filed an EEO complaint thus resulting in a hostile work environment. 11. On May 1, 2019, and May 15, 2019, S1 (Native American) requested that Complainant send all Estimates of Benefits and Accounts Receivables before his last day of employment. 12. On May 22, 2019, Complainant was informed by S1 that his access for programs/websites was deactivated. 13. On May 24, 2019, Complainant’s last day of employment, he noted as a resignation/constructive discharge. 14. On November 20, 2018, March 18, 2019, March 20, 2019, and April 24, 2019, S1 delayed Complainant’s request for Family Medical Leave Act (FMLA) leave and requested him to complete and/or provide additional documentation.2 After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The record indicates that Complainant was employed by the Agency as a two-year term employee Accounts Receivable Specialist from February 2018 until May 24, 2019, when he resigned from the position. 2 Complainant also alleged that he was denied an accounts receivable workshop in March 2018; and he was denied accounts receivable billing training on April 25, 2018 and October 24 - 25, 2019. The Agency dismissed the subject claims due to untimely EEO Counselor contact and/or for failure to state a claim. Complainant has not challenged the dismissals of these claims and therefore we shall not address those incidents. 2020003922 3 Regarding claim 1, Complainant acknowledged that he laughed off C1’s comment at that time. S1 indicated that both C1 and Complainant complained about each other concerning their unprofessional comments between them. S1 had a meeting with both of them and they apologized to each other. Complainant does not claim any further incident occurred involving C1. Regarding claim 2, S1 indicated that the Accounts Receivable workshop had limited slots and she decided to send an identified employee who was in a permanent position. Complainant was a term employee and he never talked to S1 about attending the workshop. Regarding claim 3, S1 stated that in a staff meeting on March 13, 2019, she announced that a coding class would be held and asked that anyone who was interested to speak to her individually. Complainant did not ask her to attend the class; rather he asked the class instructor directly. When the class instructor contacted her, S1 told the instructor that Complainant did not have permission to take the class. S1 noted that the coding was not related to Complainant’s position. Regarding claim 4, S1 indicated that Complainant was provided training and resources to help develop his performance; he traveled to out-of-state training; and she even removed some duties from his PMAP to aid in his performance. While S1 requested a self-assessment, Complainant failed to submit one prior to the issuance of the PMAP at issue. Complainant received a score of 3 (1 - 5, lowest to highest) for administrative requirements; 3 for customer service; 3 for batch process; 2 for posting and/or adjustments; 2 for aged claims/follow-up; and 3 for accounts receivable reports, resulting in an average score of 2.67, Level 2: Partially Achieved Expected Results. Complainant did not complete his postings and accounts receivables within the required timeframes. S1 suggested placing Complainant on a PIP, but Complainant became upset and was concerned about a PIP’s effect on his career. S1, thus, did not move forward with a PIP. Regarding claim 5, S1 denied Complainant’s request for a compressed work schedule because her office performed service unit level duties every day and it was essential to be available Monday through Friday to meet service needs. Complainant’s Accounts Receivable position was responsible for claim follow up and Complainant was needed to be available during the hours of operations of the insurance companies. Regarding claims 6 and 10, S1 denied the incidents. There is no persuasive evidence that these incidents occurred. Regarding claims 7 and 9, S1 indicated that she denied Complainant’s overtime requests at issue because he did not provide her a justification for the request and/or he was not completing his work and his productivity was low. S1 noted that she granted Complainant an extreme amount of overtime hours, i.e., 234 overtime hours in 2018, which was almost equal to the entire office staff put together. 2020003922 4 Regarding claim 8, S1 indicated that when Complainant asked her for a desk audit, she told him to contact Human Resources. S1 also indicated that she and Complainant were having an email conversation about reprimands concerning Complainant’s conduct and performance during the same time, but it was not related to the desk audit. No reprimand was issued to Complainant as a result. Regarding claim 11, S1 indicated that retrieving and returning files were a part of the exiting of a staff member (such as Complainant). Regarding claim 12, S1 acknowledged that she removed Complainant’s access to the Agency bank on May 22, 2019, because she was going on leave and would not be in the office on Complainant’s last day of May 24, 2019, as described in claim 13, below. S1 indicated that access to the financial institutions for federal facilities needed to be removed prior to an employee exiting as a security precaution. S1 noted that Complainant no longer needed access because he was working on other duties at that time. Regarding claim 13, S1 indicated that Complainant never told her he was subjected to a hostile work environment or was treated differently because he was a non-Native American. Complainant indicated that he could not communicate with S1 and he started to look for other employment. In his April 26, 2019 email to S1, Complainant notified S1 that “I am officially moving forward to another Government Agency,” and his last day would be May 24, 2019. Regarding claim 14, S1 indicated that when Complainant requested FMLA leave, she told him to submit his paperwork (OPM Form 71) to the timekeeper so the timekeeper could enter the leave request into the system. S1 stated that Complainant did not object to that. Complainant was allowed to take the day off on those days indicated. S1 noted that Complainant had multiple requests for FMLA and sick leave, and she never denied him the requested leave. Complainant does not indicate he was denied leave on the incident dates at issue. Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). 2020003922 5 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant was not performing his position duties that were expected of him by S1 during his term employment and Complainant decided to leave the Agency and move to another government Agency. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020003922 6 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. 2020003922 7 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 July 6, 2021 Date