Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 4, 20140120123185 (E.E.O.C. Sep. 4, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120123185 DECISION On August 8, 2012, Complainant filed an appeal from the Agency’s July 27, 2012, 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Contract Specialist, FV-1102-F, at the Agency’s Eastern Logistics Service Area, Acquisition and Contract facility located in College Park, GA. On January 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when: (1) since January 31, 2011 and continuing, she was subjected to a hostile work environment including: (a) from January 31 through March 16, 2011, she was not given any work assignments; (b) after returning from maternity leave on April 20, 2011, her supervisor (S1) repeatedly disapproved the work that she had submitted to her for review; (c) S1 spoke to her in a loud, disrespectful tone; (d) she was not given work assignments to enhance her skills in performing her job duties; (e) in August 2011, she was told that she had 60 days to improve her performance or face possible termination or reassignment; (f) beginning in August 2011, she was subjected to weekly meetings which were used as tools against her to annotate her performance deficiencies and, during which, she was ridiculed and interrogated; (g) beginning in approximately September 2011, for about one month, she was not given any assignments and just sat at her desk with no work to do; and (2) on November 29, 2011, she was terminated from her position of Contract Specialist during her probationary period. 0120123185 2 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. FACTUAL BACKGROUND The record shows that Complainant began her position as a Contract Specialist on January 30, 2011, with no prior contract experience. Shortly after starting, she participated in various training courses. Around the same period, three additional employees were newly hired as contract specialists (CS1, CS2, and CS3). CS1, CS2, and CS3 had previous contract experience and were hired at a higher grade level than Complainant. Complainant took maternity leave on March 16, 2011 through April 19, 2011. Complainant asserts that prior to her maternity leave she “did not receive any work.” However, she concedes that she was assigned “evaluations” to do, where she determined what contractor would be most suitable to perform whatever requirement was needed at that time. Complainant also states that she was given policies, procedures, and regulations to review prior to taking leave. The record further shows that upon Complainant’s return from maternity leave, she started receiving work assignments. Complainant states that she was confused as to S1’s expectations. Complainant also asserts that the work she submitted was constantly returned for revisions while her co-workers’ work was not. Complainant asserts that she felt unfairly singled-out. Specifically, she states that she received guidance from the more experienced contract specialists and her work imitated their work, so it did not make any sense to her why their work would not also be returned for revisions. Complainant further asserts that the work environment began to get stressful due to the multiple inexplicable revisions to each of her submissions. However, according to Complainant, things got substantially worse beginning on July 25, 2011, after she raised an issue pertaining to travel cards with her union representative (CS4). Complainant states that she informed CS4 by email that she did not have a travel card which caused her to incur travel expenses related to training. CS4 then emailed S1 and Complainant’s second-line supervisor (S2) seeking clarification. Following this email from CS4, Complainant asserts that S1’s treatment toward her became substantially more disrespectful and abusive. Complainant also asserts that when she returned from maternity leave, her coworkers generally received more assignments than she did. In addition, Complainant asserts that she asked for work continuously and was told that she would begin receiving work once she became more familiar with the clauses in contracting, but when she asked questions about the clauses to better understand them, she was ridiculed and interrogated. S1 denies interrogating or 0120123185 3 ridiculing Complainant. The record shows that at least one other contract specialist (CS2)1 received less work than Complainant during the relevant period. S1 also noted that she did not feel Complainant was knowledgeable enough to take anyone's work, especially when she did not start the project from the onset. On August 12, 2011, S1 documented “for the record” a performance issue that arose regarding Complainant. S1 noted that Complainant was assigned a “requirement” on May 23, 2011. Complainant first submitted this requirement for review during the first week of August, 2011. On August 9, 2011, S1 met with Complainant to discuss the work she submitted related to the May 23, 2011 assignment. S1 documented for the record, in part: During the course of the discussion, at one point I asked [Complainant] what was her interpretation of an individual that would submit a package in that shape for review. Her answer to me was she would think possibly the work was being done by someone who is possibly dyslectic. As discussions continued on I felt her responds/answer were untrue. [SIC] Her answer lacked merit, she made excuses and blames co-workers for her mistakes. She would not accept responsibility for the errors/omissions in the package. On more than one occasion, she outright lied. I asked her to print out the work, review it for possible errors, before passing it on to me. This did not happen. However, she insisted it had. I find it difficult to understand how you can review a package and not realize there are blank pages therein. A day later in reviewing the same package, the pages in the last three sections were upside down, yet again she insisted she had carefully reviewed the package. She implied that someone else might have put her package in that order. The clauses were out of order. Rather than seek correct information for insertion, she choose to randomly select days, timeframes, etc. Following this discussion, S1 met with Complainant and S2 on August 11, 2011, to discuss Complainant’s performance issues. S1 noted the conversation in her “memo for the record.” S1 states as follows: [Complainant] did state she like the work, but was finding it difficult to comprehend the ways things were done. She felt that because she was asking various [contract specialists] that might be some of the problem. 1 CS2 is not disabled and had no prior EEO activity. 0120123185 4 [Complainant] was advised she was being placed on sixty days period in which to improve performance. S2 also stated if she liked, we would accommodate her in looking for another position that better suited her capabilities. He asked her to think about it and let us know what her decision was on Monday, August 15, 2011. On August 12, 2011, Complainant met with CS4 to discuss what she characterized as harassment. The record shows that on August 15, 2011, Complainant and CS4 came to S2’s office. Complainant stated that she wanted to move. S2 asked her to put that in writing via email so that he could go to his supervisor to seek a reassignment. Complainant sent S2 an email confirming her request to be reassigned. On August 16, 2011, Complainant contacted an EEO counselor and raised a claim of hostile work environment with respect to performance reviews and general disrespectful treatment by S1. On August 19, 2011, S2 had Complainant meet with him and his supervisor (S3) to discuss reassignment and to obtain more information from Complainant regarding her complaints against S1. Complainant expressed her concerns to both supervisors and raised her view that she was subjected to a hostile work environment. However, Complainant also indicated that she liked contracting and wanted to stay. After hearing that Complainant wanted to stay, S2 asserts that he abandoned the search for an alternative position as he did not want to give the appearance of trying to "push" her out of the door. S2 explains that from that point forward his focus was to do whatever could be done to ensure that Complainant succeeded. This included assigning Complainant one mentor (CS5) (as opposed to having the option of several mentors available). Complainant asserts that during this meeting, S2 promised her that he would not terminate her. However, S2 denies ever making such a statement. S2 further states that the only dialog concerning termination occurred when Complainant first came into the meeting and asked "is this a termination meeting," to which S3 responded, “no.” To assess how Complainant was progressing, it was agreed that weekly meetings would be held as well. S2 states that he did not want Complainant to avoid her supervisor, but rather to foster a better working relationship. S2 further asserts that aside from the weekly meetings, the responsibility was on Complainant to go to CS5 and/or S1 for help. On September 8, 2011, Complainant formally settled her EEO complaint. According to the settlement agreement, the Agency agreed to “provide a full performance level contracting officer to serve as a mentor for [Complainant] to utilize for training and guidance.” The Agency also agreed to schedule weekly meetings between [Complainant] and [S1] to discuss her progress. Complainant claims that S1 did not assign her any work after the settlement of her EEO complaint. However, the Agency disputes this assertion. The documentary record indicates 0120123185 5 that Complainant was assigned work between September 1, 2011 and October 31, 2011. For example, a computer generated printout and S1’s notes taken contemporaneously to the weekly meetings indicate that work was being reviewed on a weekly basis. However, it did not appear to several co-workers that Complainant was performing any work in October and November 2011. On November 29, 2011, Complainant was terminated during her probationary term because S1 and S2 concluded that she failed to develop the skills required for successful performance in the assigned position. CONTENTIONS ON APPEAL Complainant disputes the Agency’s findings with respect to the conclusion that a similar situated comparison employee was not identified. Complainant argues that one of her co- workers (CS6) had similar performance deficiencies but was not terminated. Complainant also asserts that the documentary evidence in support of the Agency’s assertion that she was assigned work after September 1, 2011, was falsified. ANALYSIS AND FINDINGS Claim 1 - Harassment In its final decision, the Agency dismisses this claim in accordance with 29 C.F.R §1614.107 (a)(1) because it concludes that the alleged incidents of harassment herein concern Complainant’s performance between January and September 2011, which essentially are the same matters (performance and harassment) raised and settled in Complainant’s September 2011 informal complaint. Upon review of the record, assuming that the Agency’s dismissal was inappropriate, we nevertheless conclude that Complainant failed to present sufficient evidence to establish a hostile work environment. Specifically, we find insufficient evidence that any of the alleged conduct was motivated by Complainant’s disability or her participation in the EEO process. The record shows that management officials were aware of Complainant’s disability when she was hired. In fact she was targeted for hiring because she had a record of a disability. In addition, the record is devoid of animus toward Complainant’s disability. We also find insufficient evidence in the record to support the conclusion that the alleged hostile treatment was motivated by Complainant’s participation in the EEO process. Specifically, the undisputed record shows that the first EEO activity took place on August 16, 2011. However, by Complainant’s own account, the hostile treatment began to get substantially worse on July 25, 2011. In addition, we note that the documentary and testimonial evidence in the record shows substantial conflicts occurring between Complainant and S1 prior to August 16, 2011. 0120123185 6 Claim 2 - Termination With respect to Complainant’s termination, the record shows that S1 ultimately terminated Complainant because she was having difficulty retaining even the most simple contract concepts and was unable to communicate clearly. S1 also found Complainant unable to accept responsibility for errors she made. We conclude that the documentary and testimonial evidence in the record supports S1’s statements about Complainant’s work performance. While several co-workers disagree with S1’s assessment of Complainant’s performance and termination decision, those with first-hand knowledge provide testimony in support of S1’s view. Accordingly, we find insufficient evidence to support the conclusion that S1’s legitimate, non-discriminatory/retaliatory reason for the decision to terminate Complainant was a pretext for unlawful discrimination. In addition, while the record suggests that S1 was a poor supervisor and that Complainant was poorly trained, the preponderance of the evidence does not support a finding that S1 held discriminatory or retaliatory animus toward Complainant.2 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal3 , we AFFIRM the Agency’s final decision. 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 2 We note that Complainant did not associate her performance deficiencies with her disability and did not request an accommodation at any time. 3 We note that CS6 was not a probationary employee during the relevant time frame, and accordingly, not similarly situated to Complainant. We also find the record devoid of evidence supporting Complainant’s assertion that any of the documentary evidence in the record was falsified. 0120123185 7 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 Date September 4, 2014 Office of Federal Operations Copy with citationCopy as parenthetical citation