Shenika B.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171262 (E.E.O.C. Nov. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shenika B.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.

Appeal No. 0120171262
Hearing No. 531-2016-00066X
Agency No. HHS-CMS-0164-2015

DECISION

On January 20, 2017, Complainant 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
December 15, 2016, final decision concerning her equal employment opportunity (EEO) complaint
alleging 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that she was discriminated against and subjected to a hostile
work environment based on disability and age when:

1. On December 17, 2014 the Director, Division of Ombudsman Exceptions, Medicare
Ombudsman Group, Offices of Hearings and Inquiries disclosed Complainant's medical
information during a staff meeting;

2. On January 7, 2015, the Deputy Director issued a workload chart that assigned
Complainant a workload heavier than younger co-workers;

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.
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3. In January 2015, the Director and the Deputy Director issued Complainant a Performance
Management Appraisal Program (PMAP) summary rating of 4.0 (Achieved More than
Expected Results) for the 2014 performance period, which was lower than her 2013
summary rating; and

4. On May 6, 2015, the Deputy Director issued Complainant a written counseling
memorandum.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health Insurance
Specialist GS-0107-13 at the Agency’s Division of Ombudsman Exceptions (DOE), Medicare
Ombudsman Group (MOG), Office of Hearings and Inquiries (OHI), Centers for Medicare and
Medicaid Services (CMS) facility in Baltimore, Maryland. On April 28, 2015, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of disability
(physical), age (60), and reprisal for engaging in prior protected EEO activity as set forth above.

Complainant alleged that during a staff meeting, her second line supervisor disclosed her medical
information to her coworkers without her permission. The Agency denied that management
disclosed Complainant’s medical information during a staff meeting. Complainant also alleged
that she was given a higher volume of assignments, which were more complex than her younger
coworkers. Management indicated that the workload Complainant was assigned was developed
with her input as was done with other employees. Management also explained that the workload
charts used in the assignment process only reflected the work that employees were performing,
and was not used to indicate the complexity or volume of work. Finally, Management asserted
that Complainant never expressed concerns about her workload.

With respect to her performance appraisal, Complainant stated that she disagreed with her
appraisal ratings because she is considered a leader and subject matter expert (SME) among her
peers. Complainant also stated that despite having accomplished more in the rating year, she
received a lower rating than she did the previous year; and that her younger coworkers openly
stated that they received higher ratings than the previously years. Management explained that
though she was an SME, Complainant received lower performance ratings during the 2014
performance period because her behavior was not always that of a leader nor was she dependable.
They added that Complainant was disruptive in meetings; and that she displayed non-professional
conduct which distracted others during staff meetings including turning her back and facing the
wall.

2 A 5th allegation was dismissed by the Agency because it failed to state a claim. Because
Complainant is not challenging that dismissal on appeal, we will not address this allegation in this
decision.
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Finally, management indicated that Complainant received a counseling memorandum for
inappropriate and disruptive behavior during staff meetings.

The Agency asserted that Complainant’s disability, age and EEO activity were not determining
factors in management’s actions.

At the conclusion of 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 (AJ). Complainant timely requested a hearing.
Subsequently, the AJ dismissed Complainant’s hearing request with prejudice for failure to
respond to a Show Cause Order. Her complaint was remanded to the Agency for the issuance of
a final decision (FAD) on October 18, 2016.

CONTENTIONS ON APPEAL

In her appeal statement, Complainant, among other things, contends that although her supervisors
did not specifically identify her medication in a meeting, they did tell the staff that she was on
“medication” in violation of her privacy; that the chart submitted as evidence by the Agency was
different from the one used in the office; that the Agency’s argument that other employees in the
office should not have been assigned the same workload as Complainant because they were of
different grade levels cannot be applicable to the current situation because most of those coworkers
are now at the same grade level as she is, and do not receive the same workload that she does.

The Agency contends that Complainant failed to file a timely appeal of its FAD, and that she did
not prove that management’s actions were based on discriminatory animus.

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

At the outset, we do not agree with the Agency’s contention that Complainant’s appeal should be
found to be untimely. The record indicated that within days of receiving the Agency’s FAD, the
Agency mistakenly issued a second decision which it later rescinded. We find it reasonable to
concluded that the Agency’s error may have confused Complainant as to the proper filing deadline.
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We find that this is especially likely given the fact that her January 20, 2017, appeal was only a
few days passed the deadline, and that January 16, 2017, the 30th-day, was a national holiday.

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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie
case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of disability, age and reprisal
discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Here, Complainant alleges that her supervisors intentionally subjected her to
discrimination when her supervisors disclosed her medical information during a staff meeting;
issued a workload chart that assigned Complainant a workload that was disproportionate in volume
and complexity than that given to her younger coworkers; issued Complainant a lower PMAP
summary rating than the previous year; and issued her a written counseling memorandum.

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The Agency denied that management disclosed Complainant’s medical information during a staff
meeting. They explained that the workload Complainant was assigned was consistent with the
work assignments that had been developed with Complainant’s input as was done with other
employees; that Complainant received a lower PMAP rating for failing to meet professional
expectations; and that she was issued a counseling memorandum for inappropriate and disruptive
behavior during staff meetings. We find no persuasive evidence of pretext here.

On appeal, Complainant, with respect to her first claim, indicated that a witness stated that they
heard a manager mention the word “medication,” and that another witness heard the word “cold”
in relation to her health. Complainant maintained that this was a violation of her privacy. We do
not find that this matter, even if accurately described, is the type of medical disclosure our
regulations are designed to address.

Finally, we find that, to the extent Complainant argued that she was subjected to a hostile work
environment, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)
that Complainant’s claim of a 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.
United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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 that Complainant
did not establish discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition.
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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). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the
absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received
by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

November 16, 2018
Date