Cathy V.,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

Aug 11, 2020

2019002739 (E.E.O.C. Aug. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy V.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2019002739 Agency No. HHS-CDC-0139-2017 DECISION On April 2, 2019, 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 May 1, 20192 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. 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Health Analyst, GS-0685-13, at the Agency’s Epidemiology and Statistics Branch (ESB), Division of Diabetes Translation (DDT), National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP) in Atlanta, Georgia. Complainant has worked in her position since 1998. Complainant’s supervisor (S1) became her immediate supervisor in approximately October or November of 2015, when S1 was competitively 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 This initially premature appeal has since been cured by the Agency's issuance of its final decision. 2019002739 2 appointed to the of ESB Deputy Branch Chief. Prior to S1’s appointment, Complainant occasionally acted as Deputy Branch Chief. However, after several stints as acting Deputy Branch Chief, Complainant objected that she was not being paid as a Deputy Branch Chief would be paid. Complainant’s second-level supervisor (S2) secured Complainant a bonus for her time but was unable to secure a pay raise for Complainant. Subsequently, Complainant declined offers to act as Deputy Branch Chief. After S1’s appointment, there were relatively few opportunities to act as Deputy Branch Chief and Complainant’s coworker (CW1) was always asked to act, instead of Complainant. S2 explained that, after frequently acting as Deputy Chief, Complainant refused to continue because the Agency could not give her additional compensation. S2 understood Complainant’s position and “went elsewhere for volunteers.” In September 2016, CW1 was acting as Deputy Branch Chief when Complainant requested a detail on September 21, 2016. CW1 noted that a coworker was already on detail, referenced “the new FOAs and the current workload” and said she could not make a decision without S1 or S2’s input.3 In an email on September 21, 2016, S1 explained that she would normally support Complainant’s request, but was “unable to approve at this time” because of the office’s “current and projected workload, having one team member already out on long-term detail, and . . . the uncertainty of the new fiscal year as it pertains to staffing and resources.” S1 asserted that she asked CW1 to act several times as part of CW1’s career development and goal to develop the skillset to become a Deputy Branch Chief or similar position. Additionally, S1 has asked CW1 to act during times when there are a lot of contract and procurement issues taking place, since CW1 is familiar with these issues. S1 averred that Complainant never talked to her about not being asked to act as Deputy Chief. Complainant contended that S1 removed a performance element from her performance plan in 2016. Specifically, Complainant was no longer going to be rated based on providing back up support for the ESB budget and serving as a consultant to the ESB Branch Chief. Complainant conceded that she did not recall precisely what performance element was removed from her plan but asserted that S1 explained she wanted to better capture Complainant’s duties and responsibilities. S1 denied removing elements from Complainant’s performance plan. Rather, she removed a standard involving the ESB budget because that was a function S1 herself now performed, and its presence in Complainant’s performance plan would have resulted in overlap. S1 wanted to ensure Complainant’s duties were clearly delineated. CW2 averred that S1 removed some elements from her performance plan if she was not doing the work. 3 The acronym “FOA” is not defined in the record. 2019002739 3 Complainant alleged that S1 told her that Complainant had a communication problem. During her 2016 performance evaluation, S1 told Complainant that another employee mentioned that the employee was afraid to talk to Complainant. Complainant insisted on learning the employee’s identity. Complainant asserted that S1 divulged the employee’s identity to be S2, and Complainant sought one-on-one meetings with S2. According to Complainant, that meeting never happened, although S2 sent Complainant a private email seeking a meeting. The record contains S2’s email on February 1, 2017, in which S2 acknowledged that “things have not been so smooth” between Complainant and S2 and offered a one-on-one meeting. In response, Complainant said she is willing to meet, but also said that “this situation is continuous and that [she] may have to seek other help inside” the Agency. Further, Complainant denied having any problems with S1. In a subsequent email, Complainant asked S2 for a brief meeting regarding a continuous pattern of harassment. S2 responded that he received “a confusing note” from the Agency’s EEO department that he needed to clarify. S1 averred she told S2 that she observed issues with Complainant’s communication style. S2 agreed and said he had made similar observations. S1 said she spoke with S2 because he was her first-level supervisor and needed to be kept in the loop. Following that conversation, S1 spoke to Complainant. S1 added that Complainant “could be abrasive to both co-workers and superiors…I overlooked many instances and only addressed it when it became a bigger issue.” On January 30, 2017, Complainant and the ESB staff had a team meeting with S1 when Complainant noted that she had not received notification of her option to submit a self-evaluation in support of her performance appraisal. Complainant believed S1 got defensive and asserted that the employees should have known all along that they had the option to submit a self-evaluation. After the meeting, S1 circulated an email with details on how to submit a self-evaluation and pertinent deadlines. Ultimately, Complainant did not submit a self-evaluation. The record contains a series of emails on February 1, 2017, beginning with Complainant’s response to a document she was asked to review by CW2. Complainant copied S2 and S1 on her response, even though CW2 did not include either on her initial email. Complainant told CW2 that the document contains errors and suggests that it should be redone with her recommendation that “more attention is given to the initial proofing . . . so that I don’t have to spend so much time proofing all these mechanisms. Many of these errors can be caught before coming to me.” In response, S1 told Complainant that the initial proofing does not mean that Complainant might not catch additional errors. S2 added that it might be easier to make the changes rather than sending the document back to request changes, and that Complainant could help out her coworkers “in the spirit of working together as a team.” S1 believed it was inappropriate to copy S2 on the conversation. Additionally, On February 1, 2017, S1 sent Complainant an email suggesting that Complainant take communication training and identifying two such courses. Complainant contended that she met with S1 two days earlier and agreed that no additional training was necessary, so she did not respond to S1’s email. 2019002739 4 Complainant believed that S1 got angry and demanded in a follow up email that Complainant take communication training within six months. Complainant ultimately took two online courses and one classroom course, but never told S1 she had done so. Complainant asserts that S1 told her that she was aware Complainant took the training courses, yet still gave Complainant a low score for the communication element in her 2017 performance appraisal. Complainant acknowledged she still received an overall “Outstanding” performance rating. Complainant noted that S1 also told CW1 to take communication classes. The record contains an email from S1 to Complainant, on February 1, 2017, in which S1 indicated that, during their performance evaluation meeting, they talked about how Complainant’s “communication has often come across negatively” and that Complainant believed it to be either an unintentional misunderstanding or Complainant being direct. As a result, S1 asked Complainant to include communication courses on her Individual Development Plan “to help address this issue.” S1 provided two possible courses for Complainant’s consideration. S2 added that “it was thought that adding communication training was constructive feedback.” Complainant went on extended leave between July 5 and August 18, 2017. During this time, S1 completed mid-year evaluations. S1 emailed the evaluation to Complainant at both her Agency email address and her personal email address. In the July 24, 2017 email, S1 said that she was “just making [Complainant] aware” that the mid-year review was available if Complainant wanted to review and/or provide feedback, “entirely at [Complainant’s] discretion, especially as [she is] out on extended leave.” Complainant objected to the use of her personal email address and told S1 that she could not respond to work issues at the time. Complainant insisted she never gave S1 her personal email address and had only given it to the Agency’s EEO office. Complainant believed S1 got her email address through correspondence with the EEO office. Complainant believed that S1 could have waited until she returned to discuss the mid-year evaluation. S1 said that she copied Complainant’s personal email address because Complainant had previously complained about not having the opportunity to provide feedback. S1 said that Complainant had provided her email address on some previous correspondence, so that was what S1 used. Because Complainant was on extended leave, S1 consulted with Human Resources and was advised to hold onto Complainant’s mid-year evaluation until she returned to work. During these events in 2017, Complainant again asked S1 for permission to apply for a detail. S1 denied Complainant’s request because the office’s workload was unpredictable. Complainant conceded that S1 had requested her 2016 request for a detail to work on the Zika virus. S1 confirmed that she twice denied Complainant an opportunity to go on detail. S1 clarified that the September 2016 denial resulted because her team was down two people and would have had only one member if Complainant went on detail. However, on November 29, 2016, one of the two employees came back from his detail earlier than expected and the office added another employee. Thus, S1 could support a detail for Complainant, and attached an announcement for a senior position consistent with Complainant’s interest. Complainant responded that she was not interested. 2019002739 5 As to the second detail in or around October 2017, S1 confirmed staffing uncertainty due to an Agency-wide hiring freeze. But in November 2017, S1 learned that there was staffing flexibility. Therefore, on November 30, 2017, S1 informed Complainant that she would support Complainant’s detail, and sent her an opening in the office into which Complainant wished to detail. On October 18, 2017 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), national origin (U.S. Virgin Islands), age (66), and in reprisal for prior protected EEO activity when: 1. On February 1, 2017, S1 stated that Complainant had a communication problem, referring to Complainant’s tone; 2. On January 30, 2017, one of Complainant’s Core Elements was removed from her Performance Management Appraisal Program, and S1 did not give her or her staff an opportunity to conduct a self-evaluation; 3. After the filing of the instant complaint, Complainant was not asked to be the Acting Deputy in S1’s absence, a role Complainant had done previously; 4. S1 sent Complainant her 2017 mid-year evaluation to her personal email address while on extended sick leave, then held onto the document until Complainant’s return for a PMAP meeting in mid-September; and 5. Complainant’s requests for temporary work details were denied. The Agency dismissed Complainant’s formal complaint on the grounds it was untimely filed. The Agency also dismissed a sixth claim for failure to state a claim. Following an appeal, the Commission affirmed the Agency’s dismissal of the sixth claim but vacated the Agency’s decision as to claims (1) - (5) for untimely filing and remanded the matter to the Agency for an investigation. Lorriane L. v. Dep’t of Health & Human Servs., EEOC Appeal No. 0120181026 (Apr. 27, 2018). The Agency then investigated the aforementioned five claims. 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 EEOC Administrative Judge (AJ). On September 27, 2018, Complainant requested an immediate final decision. The Agency subsequently issued a final decision in accordance with Complainant’s request. In the decision, the Agency concluded that Complainant failed to demonstrate that the incidents alleged were sufficiently severe or pervasive or based on discriminatory or retaliatory animus. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. The instant appeal followed. 2019002739 6 CONTENTIONS ON APPEAL On appeal, Complainant argues that she was subjected to conduct that was sufficiently severe or pervasive because “Management’s repeated harassment of Complainant only served to devalue and belittle Complainant, both in front of management and her subordinates.” Complainant also argues that the Agency did not proffer legitimate, non-discriminatory reasons for its actions. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Hostile Work Environment Complainant has alleged harassment on multiple bases, including race. To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her race, national origin, age, or prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find Complainant has not proven she was subjected to an unlawful hostile work environment because the Agency’s actions, as alleged, were not sufficiently severe or pervasive. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). 2019002739 7 Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of personality conflicts and general workplace disputes and tribulations. More specifically, regarding claim (1), S1 asserted that Complainant needed to work on her communication tone, and therefore suggested communication training. The problematic nature of Complainant’s communication tone was further corroborated by several of Complainant’s coworkers. With respect to claim (2), S1 explained that she adjusted Complainant’s performance plan to more accurately capture Complainant’s duties and to demonstrate that she, as Deputy Chief would perform some of the duties Complainant had previously performed. As to claim (3), Complainant also was not asked to act as Deputy Chief because she had objected to doing so in the past, and because S1 did not need to appoint an acting Deputy Chief as often. With respect to claim (4), S1 notified Complainant of her mid-year evaluation by sending an email to her work address and copying her personal email address. In that notification, S1 recognized Complainant was on extended leave and said that Complainant had the option of reviewing it and providing feedback. Finally, regarding claim (5), Complainant’s requests for detail were denied due to staffing and funding concerns. S1 demonstrated that when those concerns eased, she sought to support Complainant for details and identified appropriate details. The Commission therefore concludes, based upon the totality of the circumstances, that Complainant was not subjected to a discriminatory or retaliatory hostile work environment. Furthermore, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, management has articulated legitimate, nondiscriminatory reasons for its actions. A review of the record, including Complainant’s arguments on appeal demonstrate that Complainant has not proffered any evidence establishing that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 2019002739 8 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. 2019002739 9 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 August 11, 2020 Date