Anne C.,1 Complainant,v.Andrew Wheeler, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jul 21, 2020

2020001894 (E.E.O.C. Jul. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anne C.,1 Complainant, v. Andrew Wheeler, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020001894 Hearing No. 570-2018-00546X Agency No. EPA-2017-0095-HQ DECISION 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 December 11, 2019, final order 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 order. BACKGROUND During the period at issue in this decision, Complainant was a probationary employee working for the Agency as a Life Scientist, GS-0401-13, in the Risks Assessment Division (RAD), in Washington, DC. Her first-line supervisor was S1, Supervisory Toxicologist, and her second-line supervisor was S2, Division Director. On September 29, 2017, Complainant filed a formal complaint alleging that she was discriminated against based on national origin (Asian Indian) when: 1. On July 14, 2017, during her probationary period, she was issued a Notice of Termination, effective July 22, 2017, from S1; and 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. 2020001894 2 2. On or about July 11, 2017, S1 contacted the Office of Air and Radiation/Office of Radiation and Indoor Air, Radiation Protection Division (RPD) and stopped her transfer which had already been initiated, causing her to lose employment in the federal civil service. Complainant was employed from August 7, 2106 to July 22, 2017. The record indicates that during her probationary period, Complainant received comments indicating that her work product required improvement. For example, in an email dated October 19, 2016, A1, Senior Science Advisor, indicated that she “was confused by” a document that Complainant had submitted to her for comments. On May 2, 2017, A1 opined that a memorandum Complainant prepared was “not adequate . . . lacking in some of the components, and confusing for the most part.” She added, “This needs a lot of work. I was expecting a work product more mature at this point since you have been working on this since last year and receiving critical feedback on aspects that need to be improved.” Complainant also met biweekly with S1 to discuss her workload, priorities and performance. At Complainant’s mid-year review in early May 2017, S1 noted Complainant’s failure to find out how to compose a memorandum in response to a submitter’s questions, failure to communicate her work load, failure to produce finished products prior to discussions, “poor e-mail exchanges,” poor written work product, lack of communication skills, failure to address written comments from reviewers of her work product, failure to listen to instructions, and working beyond her scheduled hours. On June 16, 2017, S1 informed Complainant that her employment would be terminated. Upon being told of her impending termination, Complainant arranged with the assistance of A2, an acquaintance from RPD, to give a talk to members of the RPD in the hope of securing a transfer to that office. Complainant and A2 decided not to inform RPD management that she was to be terminated. Complainant gave the talk on June 27, 2017, and the next day, A3, Associate Director, expressed interest in transferring Complainant to RPD. Upon A3’s request, Complainant forwarded to A3 the contact information for her supervisors, S1 and S2. Complainant did not notify A3 of her impending termination from the RAD. On June 30, 2017, A4, Acting Deputy Director, RPD contacted S1 for a reference for Complainant. A4 stated that she contacted S1 for a reference on Complainant’s performance history and to discuss the possible transfer, because it was her responsibility to ensure that reference checks were performed for potential employees before requesting that Human Resources take any hiring/transfer actions. A4 stated that she learned through her conversations with S1 that Complainant “had exhibited both performance and conduct problems,” and that S1 had finalized paperwork to terminate Complainant’s employment. A4 noted that Complainant never shared with her that she was the subject of a pending termination action. She also emphasized that S1 did not initiate contact with her. After her conversation with S1, A4 decided to end the reassignment process because, in her opinion, “[p]ast performance is the biggest indicator of future success, and [Complainant] did not have a good record of past performance at [the Agency].” A4 stated that Complainant came to her office on July 12 to discuss her transfer, and she told Complainant that she would not be transferring to RPD because it was not in the best interest of the division. 2020001894 3 On July 14, 2017, S1 issued Complainant a memorandum entitled “Notice of Termination during Probationary Period.” The reasons for termination included: Complainant’s failure to demonstrate fitness and qualifications for the Life Scientist position; Complainant’s failure to address reviewer comments in work products despite multiple reviews; Complainant’s failure to adequately synthesize information in work products; and, Complainant’s failure to follow supervisory instructions regarding working beyond her scheduled work hours.2 S1 wrote that a “good example” of Complainant’s failure to address comments was her work as an Assessor on the Carbon Tetrachloride team where she failed to grasp the scope of a document and was told multiple times not to evaluate the studies from the data gathering effort. Complainant’s failure to follow instructions, according to S1, resulted in her spending unnecessary time on the assignment and multiple revisions to the document in question. S1 also wrote that Complainant: [a]lso show[ed] a lack of attention to detail by failing to address questions raised by other scientists who reviewed your papers. Additionally, you have made many careless copy and paste errors. For example, there were many basic errors in the Microbial Commercial Activity Notice human health assessments, such as the wrong species and wrong case numbers. You have also failed to ask for direction or assistance with your work when it was needed; for example, not asking how to properly compose a memo in response to a submitter’s questions. I have also counseled you on multiple occasions for working beyond your work hours without prior approval. Even though you changed from a compressed Monday - Thursday, 7:30 am -6:00 pm work schedule to a daily flexible schedule, you have continued to work beyond your scheduled hours without prior approval. Considering your assigned workload, there is no reason you should be working outside your scheduled hours. Based on my overall concerns regarding your performance and ability to follow supervisory instructions, I find that you are not fit for this position. While Complainant asserts that S1 did not communicate concerns about her performance until nine months after she was hired, S1 testified that upon hiring, she met at least weekly with Complainant to discuss her workload projects and training, and later at least bi-weekly to help her manage her workload. 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). 2 Complainant was placed on an administrative leave status, and submitted a voluntary resignation, effective July 21, 2017. 2020001894 4 Complainant timely requested a hearing. On June 10, 2019, the AJ issued an Order of Acknowledgment and Scheduling of In-Person Initial Conference with a Court Reporter. In the June 10, 2019 Order, the AJ stated it appeared “that the record has been developed fully and no additional material evidence is required, with the exception of the in-person testimony of [Complainant and S1].” On October 1, 2019, the parties submitted a joint statement, and the Agency also filed a Statement of the Issues, Defenses and Position of the Case arguing that there was no dispute of material fact and Complainant’s claims should be dismissed. On October 15, 2019, the parties attended the in-person Initial Conference. Following the testimony of Complainant and S1, the AJ asked Complainant what information she would be seeking if discovery was to be scheduled. Complainant stated that if permitted to conduct discovery, she would request voicemails from A3 allegedly showing that A3 could not transfer her before August 6, 2017, but that S1 intended to terminate her prior to that date. Additionally, she stated that she would seek testimony from A2 to establish that she informed him and another RPD official, about her impending termination on June 29, 2017.3 On November 29, 2019, the AJ issued a decision finding that: (1) further development of the record was unlikely to lead to a finding of discrimination, and (2) preponderant evidence failed to show Complainant was subjected to discrimination. In reaching this decision, the AJ reviewed the evidentiary record, including the ROI, the parties’ joint submission of stipulated facts, the parties’ preconference briefs, and the in-person testimony of Complainant and S1. The AJ found that Complainant failed to establish a prima facie claim because there was insufficient evidence showing a causal nexus between her national origin and the alleged disparate treatment. The AJ found credible S1’s explanation of management’s legitimate nondiscriminatory reasons for its actions. Assuming, arguendo, Complainant made a prima facie case, the AJ found that she failed to show pretext. The AJ focused on two statements by Complainant. First, the AJ noted Complainant’s testimony that she did not think her alleged double work load was based on her national origin. Second, the AJ noted that Complainant’s only evidence of disparaging remarks was that S1 stated “of course” when informed that Complainant’s daughter had earned a high score on a standardized test. Accordingly, the AJ concluded that no reasonable factfinder could find in Complainant’s favor and dismissed her claims. On December 11, 2019, the Agency issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argued, in pertinent part the AJ did not provide her with a justification for denying her further discovery regarding A3’s July 11 and July 12 phone messages to her where A3 indicated that RPD would not be able to initiate her transfer before her termination was effectuated. She also seeks any emails between A4 and S1. Complainant also argued that S1 stopping her transfer out of the division, after finding her unfit, makes her believe that S1 had something against her that was personal. 3 In her affidavit, A4 stated that to her knowledge, no one in her division was aware that Complainant was being terminated. 2020001894 5 Complainant also stated that the AJ’s reliance on her statement that she did not think S1 “loading her with double the workload” was due to her national origin, was misplaced because she never thought S1’s actions were personal until her reassignment was revoked. As to whether she was given the same amount of work as her colleagues, Complainant maintains that the AJ erred by relying solely on S1’s testimony. In addition, Complainant claims the AJ erred by not allowing her to call A2 as a witness because he was her point of contact at RPD and knew her termination was imminent. She disagreed with the Agency and AJ’s position that A2’s testimony was unnecessary because he was not the decision maker. Finally, Complainant complained the AJ erred in finding her termination appropriate because she was never given any written warning of her deficiencies. According to Complainant, she did not obtain a copy of her mid-year review until she received the ROI. In response, the Agency argued, in pertinent part, that its final order should be affirmed. ANALYSIS AND FINDINGS At the outset, we note that although the AJ held that Complainant’s case was dismissed, a fair reading of his decision clearly indicates that he addressed the merits of Complainant’s claims and reached the conclusion that she did not establish her claim of discrimination based on her national origin. Therefore, the use of the term “dismissed” was a harmless error. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Claim 1: The record reveals that S1 did not terminate Complainant’s employment due to discriminatory reasons but out of concerns about her work performance. As the Agency noted Complainant’s offer letter stated that her appointment was subject to a mandatory one-year probationary period; her supervisor would closely monitor her performance and conduct; and that her appointment could be terminated at any time during this period for any deficiency in performance or conduct. S1 provided Complainant several non-discriminatory reasons for her decision, which were set forth in a Notice of Termination Memo dated July 14, 2017. As noted above, the AJ found S1’s testimony explaining her rationale to be credible. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC 2020001894 6 Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Although Complainant, on appeal, questioned the AJ’s reliance on S1’s testimony, she provided no documentation or other objective evidence that contradicts S1’s testimony. Employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Furthermore, where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). We find no such evidence here. Accordingly, we find that Complainant did not establish that her national origin was the reason for her termination. Claim 2: Contrary to Complainant’s assertions, she provided no evidence that raises a genuine issue of material fact that S1 contacted A4 in an attempt to prevent Complainant’s reassignment. A4 stated that she contacted S1. Moreover, A4 stated that after talking with S1, she decided, in the best interest of her division, not to continue with the transfer. Other than mere speculation, Complainant simply presented no evidence raising a genuine issue of material fact that her national origin played any role in the denial of her transfer. On appeal, she disputes several rulings made by the AJ concerning discovery and a witness; however, AJ’s have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 109. There is no dispute that S1 and A4 had a conversation about Complainant transferring to A4’s division, both officials discussed their conversation. Moreover, there is no dispute that A4 made the final decision to deny the transfer. Consequently, we do not find that the AJ abused his discretion in denying Complainant’s request for possible voicemails from A3, or emails between S1 and A4, or in not allowing A2’s testimony; because this evidence, if it existed, would only have provided information that was already known; therefore, it was not material. In the present case, we find the record in the present case was fully developed. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that Complainant did not establish that she was discriminated against as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order. 2020001894 7 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. 2020001894 8 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 July 21, 2020 Date