0120160886
04-30-2018
Zoila P.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zoila P.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120160886
Agency No. HHSCDC01492012
DECISION
On December 29, 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 November 24, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether the evidence of record established that Complainant was subjected to discrimination based on age (51) and/or reprisal when her superiors took various actions impacting her job performance and duties.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health Advisor (also denoted as a "project officer"), GS-685-13, at the Agency's CDC HIV/STD/TB Prevention Branch facility in Atlanta, Georgia and had held that position for seven years.
On June 1, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (51) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On January 26,2012, Complainant received only a "fully successful" rating on her 2011 performance evaluation.
2. On June 28, 2012, Complainant received an email requiring her to come into work on her telework day to meet face-to-face to discuss a site visit agenda when this requirement was not made of her colleagues.
3. On June 28, 2012, Complainant was given instructions not to conduct a scheduled site visit without her team lead accompanying her, an action she contended was normally reserved for employees with marginal performance.
4. On June 27, 2012, Complainant was threatened with disciplinary action if she did not sign a Nondisclosure Agreement and Rules of Behavior Acknowledgement document.
5. On August 8, 2012, Complainant learned her acting team lead/rater uploaded a revised version of her mid-year appraisal that was distinctly different than the appraisal that was emailed to her on July 11, 2012, and Complainant was not given a similar opportunity as other project officers to review and comment on her revised mid-year appraisal.
6. Beginning on or about August 27, 2012, Complainant learned that her acting team lead/rater had assumed Complainant's responsibilities and tasks for monitoring, oversight, and technical assistance of directly funded health departments and community based organizations (CBOs), that she was the official project officer of record appearing on the federal Notice of Grant Award under job task and responsibilities.
The Agency accepted the complaint and conducted an investigation.
Fully Successful Rating. Complainant believed that she should have received an "exceptional" rating for 2011 instead of a "fully successful" rating. Complainant asked her supervisor why she was not given an exceptional rating. She was told that she did not provide a self-assessment justifying an exceptional rating. Complainant stated that she gave him her self-assessment on January 27, 2012, containing justification for an exceptional rating. Her Supervisor changed her rating to an exceptional on the "Program Development and Implementation" element. However, no changes were made to the remaining ratings.
While Complainant contends that she believed that she should have received higher ratings on the other projects, her Supervisor rated her at fully successful. The record shows that she had received "exceptional" ratings in other evaluations, but that the ratings varied from year to year. Moreover, her supervisor stated that his practice was to assess exceptional ratings with additional accomplishments such as participating in work groups or committees, and making significant contributions that benefited the work group. He stated that to receive an exceptional rating an employee had to exceed all deadlines for submissions of technical reviews and site visit reports and to produce error free high quality and timely written documents that required minimal editing. In this rating period, Complainant's supervisor did not find that she had performed at an "exceptional" level.
Complainant's supervisor also maintained that Complainant never volunteered to serve on work groups. He appointed her to co-lead the California Judicial Conference work group to assist Complainant in moving toward an exceptional rating. However, Complainant failed to successfully engage in the planning of the meeting and the task was reassigned to another employee. Additionally, Complainant had several delinquent site visit reports, a delinquent technical review, significant delays in the approval of strategic plans, and delays in processing "STAR" items. He explained that employees had a window of opportunity to complete the STAR actions. Complainant failed to address these items as documented in a November 29, 2011 email. He stated that all of Complainant's delinquencies were documented in emails and discussed with Complainant during their regularly scheduled meetings. He denied that he based her rating on her age or on any criteria other than his assessment of her work.
Forced to go to office on telework day. Complainant stated that while teleworking, a meeting with a co-worker appeared on her Outlook calendar. Complainant stated that she called the co-worker. The co-worker and another participant wanted to know why Complainant was not at the scheduled meeting. Complainant informed them that it was her telework day, and that she previously discussed that she would call into the office when meetings were scheduled on her telework days. Complainant stated that it was not clear that she had to go into the office. The co-workers agreed that Complainant did not need to go into the office that day. They all agreed that Complainant could participate through teleconference calls for meetings scheduled on her telework days.
Complainant was given instructions not to conduct a scheduled site visit without her team lead accompanying her. Complainant stated that beginning June 21, 2012, she exchanged emails regarding a site visit to a program that was having significant performance problems. Complainant's supervisor states that it was policy for a team lead to accompany any project officer on a site visit when a grantee had "a number of persistent problems, or when the project manager was having problems adequately managing a cooperative agreement." The supervisor asserted that, pursuant to this policy, the team lead was necessary in this instance.
Complainant was threatened with disciplinary action if she did not sign a non-disclosure agreement and Rules of Behavior Acknowledgement document. Complainant was required to sign a non-disclosure and Rules of Behavior Acknowledgement, and to take Non-Disclosure Training. The requirement applied to all of the project officers, not just Complainant. Complainant and some other project officers had questions about the requirement. Some project managers, including Complainant, delayed in signing and returning the agreement to Management. As time passed, Management took more aggressive measures with the project managers to implement its requirement and to obtain all the signed documents. Complainant's superior denies threatening Complainant.
Complainant learned her acting team lead/rater uploaded a revised version of her mid-year appraisal that was distinctly different from the appraisal that was emailed to her. Complainant stated her supervisor used outdated criteria from 2010 in her mid-year review, rather than the 2012 criteria. Complainant also disputed her supervisor's claim that the differences between the two versions were not significant, and provided excerpts to demonstrate the differences.
The Agency had changed the format of appraisals for all employees. A review of the new appraisal forms shows that although the wording was different, the substance and content were the same as the old appraisal forms. Complainant's performance evaluation on the new form was consistent with her evaluation on the old form.
As a sub-issue, Complainant alleged that she was treated differently from other employees when she was not provided the standard five (5) days to review and comment on her mid-year evaluation. Complainant did not provide evidence to demonstrate that she was treated differently from other employees.
Acting team lead/rater assumed Complainant's responsibilities and tasks of directly funded health departments and community based organizations (CBOs). Complainant's supervisor stated that she did not permanently transfer Complainant's health programs and CBOs from Complainant's responsibilities. She explained that beginning on August 24, 2012, she began sending emails to Complainant. Complainant alleged the emails were the cause of Complainant's "stress." The supervisor contends that her emails were all routine communications regarding Complainant's work duties, guidance to Complainant, discussions of specific issues, and requests for work products.
Complainant's supervisor further states that on August 27, 2012, Complainant came to work for half a day and was out of the office for the remainder of the week on sick leave. The following week Complainant came to work briefly on September 5, 2012, to drop off paperwork. Complainant then requested twelve (12) weeks of medica1 leave under FMLA and again left the office on sick leave. The FLMA request was approved on September 11, 2012. Due to Complainant's absence from August 28 through the beginning of Complainant's FMLA leave on September 11, 2012, the Branch needed to move forward. Complainant's workload was redistributed through an established practice to a new point of contact (POC). On September 17, 2012, the grantee health departments were notified that Complainant was on extended leave and her supervisor would be serving as the grantee's POC during Complainant's absence. The supervisor indicated it was customary practice and policy to temporarily reassign grantees and recipients in circumstances when employees were out of the office for an extended period.
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 requested a hearing, but later withdrew that request. Therefore, the Agency issued a final decision based on the evidence gathered during the investigation pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to age discrimination or unlawful retaliation as alleged.
CONTENTIONS ON APPEAL
Complainant provided no additional contentions on 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, 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").
In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Furnco Construction 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, 411 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 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 pretextual. 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).
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).
Here, responsible Agency officials articulated legitimate, non-discriminatory reasons for the actions taken by the Agency, as detailed above. Complainant articulated her frustration, beliefs and contentions, but failed to provide evidence that would establish that the reasons articulated by Agency management officials for their interactions with Complainant were pretexts for age discrimination or the result of retaliatory animus.
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.
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
__4/30/18________________
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.
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