Terica W.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120170799 (E.E.O.C. Oct. 24, 2018)

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

Terica W.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.

Appeal No. 0120170799

Agency No. HHSCDC02202016

DECISION

On December 14, 2016, 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
November 10, 2016 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant was discriminated against based on reprisal (prior EEO activity) when her
appointment to the contract position of Executive Resource Specialist through an employment
company was withdrawn.

BACKGROUND

Complainant was a proposed contractor employed by Company 1. Complainant was not employed
by the Agency during the time at issue. She was, however, once employed by the Agency, and
filed a complaint of discrimination against the Agency in 2011. The contract position at issue is
that of Executive Resource Specialist working with the Human Resources Office and the Office

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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of the Director at the Centers for Disease Control and Prevention in Atlanta, Georgia. The record
indicates that Complainant was initially informed that she had been selected, but subsequently told
that a mistake had been made and that the position would be going to another individual. The
resume that had been selected for the position was not Complainant’s resume. On April 29, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against her based on
reprisal for prior protected EEO activity under Title VII.

The Agency stated that it utilized the services of Company 1 for staffing matters. Company 1
supplied the Agency with anonymous resumes that specified the skills and experience of potential
employees. The Agency was looking for an Executive Resource Specialist. Company 1 forwarded
resumes of potential candidates to the Agency. More than one potential candidate met the
Agency’s specifications. Agency personnel reviewed the potential candidates, selected one, and
notified Company 1 of their selection. As noted above, inadvertently, the anonymous resume that
was selected by the Agency was not the one submitted by Complainant. Company 1, apparently
not realizing the error, proceeded to complete the process and forwarded Complainant’s selection
and retention documentation to the Agency. Complainant was advised that she was selected. Upon
receipt of the documentation, the Agency reviewed the paperwork and found that there had been
a mistake. Complainant’s resume that was sent to them was not that of the employee they had
selected. Company 1 confirmed the error and rectified the mistake. The temporary position was
awarded to the applicant who was actually selected by the Agency. This all occurred between
March 9, 2016, and March 15, 2016. Complainant was advised of the change and the
circumstances underlying it. She objected and maintained that she had been the victim of
discrimination based on an EEO complaint that she had filed in 2011, approximately five (5) years
before this matter, and other protected EEO activities in 2012 and 2013.

Complainant alleged that A1, Contract Specialist, Office of Acquisition Services, GS-15, was
aware of her prior complaint and representation of other complainants in 2012 and 2013, when she
was previously with the Agency. Complainant alleged that either A1 told everyone involved in the
current complaint, or that everyone in the hiring unit must have known because her complaints
“resulted in widespread and far-reaching changes that still reverberate throughout the CDC” and
“[t]hese CDC representatives all know that [she] and [her] persistent actions (protected activities)
were the catalyst for these major changes.”

A2, Management and Operations Specialist, Office of the Chief of Staff (OCS), GS-13, was the
employee who was responsible for the decision to enter the contract, and who noticed the
discrepancy between the resume she expected and the one she received at the time of
Complainant’s on-boarding, and communicated the issue to Company 1. According to A2, she
was not aware of Complainant’s prior EEO activity. A2 explained that the OCS thought that they
were getting a different candidate than Complainant, whose resume did not fit the requirements
for the position.

A3, Contract Specialist, Office of Financial Resources, Procurement and Grants office (PGO), GS-
9, stated that he was A2’s contact in the PGO. A3’s statement supports A2’s explanation. Further,
A3 stated that he had only been in his position for 11 months, and that he did not know
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Complainant and was not aware of her prior EEO activity until he was informed of the current
complaint.

Finally, emails between A2 and A3 indicate they intended to select a different candidate than
Complainant.

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. Complainant did not request a hearing before an
Administrative Judge. She requested a final decision. In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL

Complainant, among other things, contends that her resume was accepted and that the Agency
never intended to select the person who was eventually hired.

The Agency submitted a brief arguing that Complainant failed to establish that its explanation for
her inadvertent selection was pretext for discrimination.

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, 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”).

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate
treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant must establish a prima facie case by demonstrating that she 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 Center v. Hicks, 509 U.S. 502 (1993).

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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 (Sept.
25, 2000).

To meet her burden of proving that the Agency's actions were pretextual, Complainant needs to
demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in
the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence.” Evelyn S. v. Dep't of Labor, EEOC Appeal No.
0120160132 (Sept. 14, 2017); See also Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal for having engaged in prior EEO activity, we find that the Agency presented legitimate
non-discriminatory reasons for its actions. Moreover, we find that other than making general
assertions that the Agency’s explanations for its actions were pretext for discrimination,
Complainant did not demonstrate that said explanations were unworthy of credence. As
Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us.

Based on the record before us, we are not persuaded that Complainant has shown that the Agency’s
conduct was based on her prior protected EEO activity. Complainant’s EEO activity was at best
3 – 5 years before the matter at issue here. There is an absence of evidence supporting a nexus
between Complainant’s prior protected activity and her current averments of adverse treatment.
We find that Complainant’s averments of discrimination are not supported by a preponderance of
the evidence of record.

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.

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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. 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.
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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
October 24, 2018
Date