0120160634
06-07-2018
Zenia M.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zenia M.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120160634
Agency No. HHS-HIS-0065-2014
DECISION
On November 21, 2015, 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 August 31, 2015 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Billing Technician, GS-6, at a Belcourt, North Dakota health care facility of the Agency. On March 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment based on disability (December 1, 2009 work-related injury - herniated discs) when:
1. between August 8, 2013 and March 10, 2014, a Human Resources Specialist (HR1) and Complainant's immediate supervisor (S1) repeatedly called Complainant asking for more information from her medical providers, without any explanations,
2. on December 2, 2013, HR1 and S1 accused Complainant and her medical provider of fraud when Complainant stopped working on December 2, 2013 instead of August 5, 2013 (the date her provider originally recommended),
3. on February 19, 2014, S1 told Complainant to report for work for four hours per day stating he received a written request from the Office of Workers' Compensation Programs (OWCP), which was false because no such request was sent to S1, and
4. on December 6, 2014, Complainant received a Proposal to Remove her from federal service, and Human Resources management told her several times "They are going to fire you."
The Agency accepted Complainant's claims for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that she needs to be able to lie down and she lays down most of the day and night. Also, Complainant stated that she lays in a bathtub for hours at a time. Complainant stated that it is very difficult for her to sit long periods of time for her job because she needs to lie down. She stated that she can barely walk. Complainant stated that her physician (P1) placed her off-of-work effective August 5, 2013, but HR1 wanted medical documentation that did not use the term "recommended." Complainant stated that P1 works a schedule of two weeks on/two weeks off and has emergency room duties so she was not able to see him until October 31, at which time he changed the term "recommend" to "unable" to work. Also, Complainant stated that HR1 wanted her to apply for disability retirement rather than OWCP benefits. She stated that HR1 sent P1 another form on October 31 and requested Complainant complete an OWCP form on December 2, 2013. Complainant stated that HR1 kept finding fault with her medical documentation although OWCP approved her for benefits, but OWCP stated it could not pay her until she stopped working. Complainant alleged that HR1 would not allow her to stop working. Complainant stated that HR1 was upset that P1 backdated a medical form that he had to recomplete with his original signing date. Complainant stated that the Agency wanted her to return to work and placed her on absence without leave (AWOL) rather than leave without pay (LWOP).
Agency's Response
HR1 stated that he was the OWCP Coordinator for the Agency. HR1 stated that when he discussed Complainant's medical documentation with her, he informed her of her options, the different procedures, and the appropriate staff to contact. HR1 stated that Complainant informed him that she did not want to retire or resign, and that the Agency could remove her. HR1 stated Complainant wanted to go out on OWCP. HR1 stated that he informed Complainant that it does not look good on her record for the Agency to remove her, but she could resign and the Agency place her on OWCP. HR1 stated that Complainant wanted to be removed for "medical inability." HR1 stated that he informed Complainant that OWCP may require vocational rehabilitation or alternative employment. HR1 stated that he reviewed Complainant's medical documentation and noticed discrepancies between appointment dates and signature dates, and suggested she have it corrected for OWCP. HR1 stated that OWCP contacted him with a question about the date Complainant was seen by her physician. HR1 stated that he contacted the Clinical Director where P1 works to clarify the date Complainant was seen. HR1 stated that he was trying to assist Complainant with whatever process she chose. HR1 stated that he and S1 misunderstood the original letter from OWCP as stating that Complainant could work part-time, however, they learned that was a mistake. HR1 stated that OWCP reissued the letter to clarify it. HR1 stated that the Agency placed Complainant on LWOP between December 2, 2013 and December 1, 2014.
Complainant's Supervisor, S1, stated that he conferred with HR1 and thought that OWCP's letter instructed the Agency to offer Complainant a reduced-hour, part-time position. Also, S1 stated that OWCP informed the Agency that Complainant's OWCP benefits would expire on December 2, 2014 and Complainant needed to inform the Agency of her intent to return or not return to work. OWCP instructed Complainant to contact her supervisor, but she did not. S1 stated that he proposed terminating Complainant at that time.
HR1's Supervisor (HR2) stated that Complainant called her when HR1 was unavailable, and she explained her options as an employee who could not come to work. HR2 stated that she may have laughed during their conversation, but not about the Agency removing Complainant from employment.
Investigative Record
The record contains the pertinent documents that follow.
* OWCP Claim Medical Record Progress Notes for a visit of August 5, 2013 and signed by P1 on September 3, 2013.
* Attending Physician's Report, dated September 10, 2013, signed by P1, stating "Recommend Total Disability . . . Recommend this patient cease working entirely."
* Attending Physician's Report, with typewritten date of October 31, 2013 but signed date of September 10, 2013, from P1, stating "unable" to return to regular work or light work and "continuing to work is aggravating the muscle strain and herniated discs."
* Attending Physician's Report, dated November 29, 2013, from P1, stating "unable" to return to regular work or light work and "I have stated that this patient should not work on 8-5-13."
* A letter, dated December 26, 2013, from P1 to OWCP, stating that Complainant should have stopped working August 5, 2013 (as he originally recommended) due to pain and discomfort slowly worsening.
* A letter, dated January 21, 2014, from OWCP to Complainant stating her "claim for recurrence of disability effective 12/02/2013 has been ACCEPTED by this office."
* A letter, dated December 5, 2014, from S1 to Complainant proposing to remove her from federal service for "Medical Inability to Perform" and "Failure to Maintain a Dependable Work Schedule." The letter noted that Complainant used 2,160 hours of leave without pay between December 2, 2013 and December 1, 2014.2
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation, and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or an immediate final agency decision. In accordance with Complainant's request, on August 31, 2015, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as she alleged. The instant appeal from Complainant followed.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record does not show that HR1 sought information beyond that necessary to inform Complainant of her benefit options and to point her in the direction necessary to get appropriate information. Further, the Agency stated that HR1 operated within his role as OWCP Coordinator when working with Complainant. The record reveals that the Agency placed Complainant on LWOP for the period between December 2, 2013 and December 1, 2014, and OWCP accepted Complainant's claim as of December 2, 2013. The Agency stated that HR1 and S1 erroneously determined that OWCP approved Complainant for part-time work rather than complete absence from work. The Agency stated that Complainant was placed on LWOP for a year with OWCP benefits, and OWCP instructed Complainant to contact the Agency to inform it whether she could report for work. The Agency stated that it issued the proposed removal when it did not hear from Complainant, but continued her LWOP once she responded. The proposed removal was rescinded the same month it was issued. The record does not show that HR1 prevented Complainant from ceasing to work.
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected class. Further, as to Complainant's claim that the actions alleged created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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.
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
June 7, 2018
__________________
Date
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.
2 The Agency rescinded the proposal for removal on December 24, 2014.
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