0120111112
06-12-2012
Anne R. Manley, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Anne R. Manley,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120111112
Agency No. HHSCMS01782009
DECISION
On December 9, 2010, Complainant filed an appeal from the Agency's November 7, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Insurance Specialist at the Agency's Centers for Medicare and Medicaid facility in Baltimore, MD.
On May 12, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On January 26, 2009, the Agency's Acting Deputy Director, Medicare Drug and Health Plan Contract Administration Group (MCAG), issued Complainant a fully successful performance rating for the 2008 performance period;
2. From April 2009 through the summer 2009, Complainant was subjected to increased scrutiny of her time and attendance;
3. From October 2009 through January 2010, Complainant was excluded from most meetings;
4. On January 28, 2010, the Director, Division of Policy, Analysis and Planning (DPAP) issued the Complainant a fully successful performance rating for the 2009 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 EEOC Administrative Judge (AJ). 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.
The record in this matter indicates that this matter initially came before the Commission pursuant to Complainant's appeal in Manley v. Department of Health and Human Services, EEOC Appeal No. 0120093704 (March 19, 2010). Therein, the Commission remanded claim 1 of the instant complaint to the Agency for processing. Subsequently, on May 11, 2010, Complainant amended her complaint to also include claims 2, 3 and 4.
Complainant alleges in claim 1 that the Agency discriminatorily rated her fully successful for the 2008 performance period. According to the Agency, while Complainant's supervisor found that Complainant successfully completed her assigned duties, she refused to take on additional duties and was reluctant to assume new responsibilities. Specifically, the record indicates that when Complainant's supervisor had given Complainant an assignment involving marketing guidelines, Complainant resisted starting the project and suggested that her supervisor assign it to other employees she viewed as more qualified to complete the task. Similarly, the Agency indicated that when Complainant's supervisor asked Complainant to review documents, rather than reviewing the documents herself, Complainant would send them to members of her team for their review and commentary. The record indicates that Complainant preferred to work in workgroups rather than being the lead on assignments which had specific tasks and due dates. In that regard, the Agency concluded that Complainant was properly rated fully successful for her performance in 2008.
In claim 2, Complainant alleges that she was subjected to increased scrutiny of her time and attendance from April 2009 through the summer of 2009. The Agency, however, indicates that during the time period in question, Complainant failed to comply with Agency policy with respect to time and attendance. Specifically, the Agency indicates that as a part-time employee working 32- hours per week, Complainant was required to have a fixed work schedule regarding the days and times she would be in the office. Agency policy also requires that part-time employees request leave in advance whenever possible. However, according to the Agency, Complainant routinely emailed her supervisor at the end of each pay period accounting for the time she had worked. By email, Complainant regularly requested leave in order to make up the difference where she had not worked the requisite 64 hours. Consequently, Complainant's supervisor met with her on May 29, 2009 to discuss her conduct with respect to work hours and requesting leave, and to discuss the Agency's time and attendance policy. The record further indicates that Complainant's supervisor sent Complainant an email on May 31, 2009 summarizing the content discussed at the meeting.
Complainant alleges that she was excluded from meetings from October 2009 through January 2010. The Agency contends, however, that during the time period in question, Complainant was invited to all meetings at which her presence was appropriate. The Agency further noted that Complainant was not present at two meetings. At one such meeting on October 8, 2009 regarding the H1N1 influenza virus, Complainant was not in the office that day. In another instance, the record indicates that the Complainant was charged with conducting bi-weekly teleconferences with two major trade associates regarding the H1N1 virus. Complainant's supervisor delegated the lead responsibilities to one of Complainant's co-workers who was responsible for scheduling the bi-weekly meetings. Complainant was inadvertently left off the electronic invitation to attend the meeting but was added to the meeting invitation once the error was discovered. According to the Agency, there were no other meetings during the time period in question from which Complainant was excluded.
With respect to claim 4, the Agency indicates that Complainant's prior EEO activity was not a factor in her rating of fully successful. Specifically, Agency found that while Complainant's work product was typically clear, well written and did not require extensive revision, Complainant's supervisor found areas in which Complainant could improve her performance. According to Complainant's supervisor, Complainant had missed some deadlines for assignment and she needed to become more flexible and adaptable with respect to her workload being reprioritized. Complainant's supervisor further indicated that Complainant needed to proactively identify new opportunities for herself and needed to proactively familiarize herself with new assignments.
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. (November 9, 1999) (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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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).
Assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the decision of the Agency finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 12, 2012
__________________
Date
2
0120111112
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111112