Gia M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Apr 12, 2019

0120180659 (E.E.O.C. Apr. 12, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gia M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.

Appeal No. 0120180659

Hearing No. 490201500089X

Agency No. DCAAE14007

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October
16, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Auditor, GS-12, Gulf Coast Virtual Incurred Cost Team, in Pascagoula, Mississippi.

On August 13, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Hispanic), national origin (Puerto Rican) and
reprisal for prior protected EEO activity when, on February 8, 2013, her employment with the
Agency was terminated during her probationary period.

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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After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant timely requested a hearing. The Agency submitted a motion for a decision without
a hearing. On September 22, 2017, after the parties had an opportunity to engage in discovery,
the AJ issued a decision by summary judgment in favor of the Agency.

The record provides the following undisputed facts:

On May 21, 2012, Complainant began working in the Agency’s Gulf Coast Branch Office, as an
Auditor, GS-12, conditioned on a 1 year probationary period. Complainant’s first level
supervisor (“S1”) was a Supervisory Auditor, GS-13, and her second level supervisor (“S2”) was
the Branch Manager for the Gulf Coast Branch Office, GS-14.2 S2 interviewed Complainant and
recommended her for the Auditor position, which at GS-12, was considered a “senior level”
position.

Complainant was assigned a colleague mentor (“C1”), also an Auditor, GS-12, (Black, United
States, Prior EEO Activity as a witness), who testified that her role was to “provide audit
guidance, answer questions, and assist in any way possible to help her with the assigned audit.”
Complainant also successfully completed the Agency’s new-hire auditor coursework, yet she
struggled with her first assignment, which was a desk audit. According to S1, Complainant
demonstrated poor time management, made careless mistakes, would not ask for help, and
indicated a lack of the requisite knowledge for a GS-12 level Auditor.

Per Agency policy, probationary employees were subject to a 3 month, 6 month and 10 month
performance evaluation, in accordance with Chapter 19, Section 2 of the Agency’s Personnel
Management Manual, which is based on 5 C.F.R. § 315(H). On October 18, 2012, Complainant
received poor ratings on a performance evaluation completed by S1, and signed by both S1 and
S2. The evaluation identified areas for improvement, including but not limited to following
instructions, and providing clear, understandable, grammatically correct, written and oral
communication. Complainant disputes S1’s characterizations of her, and explain the poor rating
is based on lack of training. Specifically, she states that she was trained in other Auditing
functions, but was unfamiliar with Desk Audits.

On November 11, 2012, Complainant initiated an EEO complaint (“Complaint 1”) based on the
October 18, 2012, performance evaluation.

2 National Origin, Race, and EEO activity are not specified for S1 and S2, although Complainant
believes them to both be white and from the United States. S1 left the Agency in August 2013,
and S2 retired and declined to participate in the EEO for this complaint.
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The instant reprisal allegation arises from Complaint 1. 3 It is unclear when S1 was notified of
Complainant’s EEO activity, however, the EEO Regional Manager (“EEO”) notified S2 by email
on November 16, 2012.

On February 8, 2013, S2 issued the “Letter of Termination during Probationary Period” to
Complainant. The Letter explained, citing examples from Complainant’s January 2, 2013
performance evaluation, that the termination was based on “unacceptable performance” and
failure to improve after the October 18, 2012 performance evaluation. The letter also explained
that it had been issued pursuant to 5 C.F.R. § 315, and included notice of her EEO rights, and
forms necessary to appeal to the Merit Systems Protection Board (“MSPB”).

On March 3, 2013, Complainant filed a “mixed case” complaint with the MSPB, which was
ultimately dismissed.4 On February 19, 2014, an EEOC AJ denied Complainant’s Motion to
Amend Complaint 1 to include her February 8, 2013 termination. On April 29, 2014,
Complainant contacted the Agency’s EEO Office to file her claim as an EEO complaint, per 29
C.F.R. § 1614.30. Due to lack of notice by the Agency, she was not counseled until June and
July 2014. Complainant filed her formal EEO complaint on August 13, 2014.

After the AJ issued his decision on the matter, the Agency issued a Final Order adopting AJ’s
findings, including the AJ’s order denying Complainant’s Motions to Compel and for Default
Judgment as sanctions against the Agency. The instant appeal followed.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

3 EEOC Appeal No. 0120151274 (May 5, 2017) aff’ing EEOC Hearing No. 420201300187X
(Jan. 15, 2015) (finding no discrimination in “Complaint 1”) reconsideration denied EEOC
Request No. 0520170399 (Sept. 8, 2017); Agency Case No. DCAAE13001.

4 MSPB Docket No. AT315H130378I1 (Nov. 13, 2013) (dismissing Complainant’s complaint
for lack of jurisdiction, determining that Complainant was a probationary employee), petition for
review denied MSPB Docket No. AT315H130378 (Aug. 19, 2014).
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Allegation of AJ Abuse of Discretion

The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29
C.F.R. § 1614.109 et seq; EEO MD-110, Chap. 7, § III(D). An AJ has inherent powers to
conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see
Matheny v. Dep't of Justice, EEOC Request No. 05A0373 (Apr. 21, 2005); Roundtree v. Dep't of
Treasury, EEOC Appeal No. 07A00015 (Jul. 17, 2001).

Having carefully reviewed the record, we find that the AJ did not abuse his discretion when he
dismissed Complainant’s February 12, 2015 Motion for Default Judgment and her June 19, 2015
Motion to Compel.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency’s legitimate nondiscriminatory reason for Complainant’s termination during her
probationary period was “unacceptable job performance” and that it acted in accordance with 5
C.F.R. § § 315.803 and 315.804. This reasoning is consistent with Commission’s position that
when a complainant is a probationary employee, he or she is subject to retention, advancement,
or termination at the discretion of an agency so long as these decisions are not based on a
protected category. See Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084
(Jul. 11, 2017) citations omitted.
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Complainant acknowledges that she was aware of her probationary status, and that that as a
probationary employee, she could be terminated for bad performance, or for conduct issues at
any time.

Among other things, Agency procedure for probationary employees states: “[w]hen it becomes
apparent that the employee’s performance, conduct, and/or general character traits do not merit
retention in the Federal service, the supervisory should immediately contact the human resources
office for procedural guidance on initiating an action to separate the employee.” HR testified that
he spoke with both S1 and S2 regarding Complainant’s termination. He also testified that
Complainant was terminated because “her performance was poor from the onset of her
employment. At the (3) month evaluation her performance was poor. At the (6) month
evaluation of her performance it was unacceptable.”

Complainant’s October 18, 2012 and January 2, 2013 evaluations were scored using a standard
form used for probationary Auditors Agency-wide, and accompanied by S1’s notes for the
following categories: (a) ability to follow instructions (b) use of time, (c) oral expression, (d)
quality of work, (e), initiative, (f) judgment, (g) personal characteristics, (h) working paper
preparation, (i) written expression, (j) critical thinking and (k) knowledge of accounting theory.
S2 signed off on both evaluations. In the January 2, 2013 evaluation, S1 expressly recommended
that Complainant be separated during her probationary period because she “not demonstrated
marked improvement over the prior evaluation period… based on the performance standards of a
GS-12, this employee would not meet the fully successful level.” S2 was the concurring official.

Complainant aptly points out that S1’s comments for categories (a), (c), (h), and (i) imply that
her ability to speak English is partially to blame for her poor rating, giving rise to an inference of
national origin discrimination. Yet, she offers no additional evidence to establish S1’s comments
were false or pretextual. We take administrative notice that for Complaint 1, an EEOC AJ found
Complainant failed to prove that her poor performance appraisal from October 18, 2012 was
based on discriminatory animus. Additionally, the record for Complainant 1 contains the
following testimony from one of Complainant’s mentors (American, race not specified), an
Auditor, GS-11, who also reported to S1 and S2:

During [Complainant’s] time with me she demonstrated difficulty in
understanding verbal instructions in both English and in Spanish. She showed
difficulty using agency tools, using agency equipment and communicating
effectively. I often sat with her when she was working through her assignments to
assist and remind her of what steps we were doing in the Audit process and help
her use the agency software. She seemed to have a lack of skill set in
dealing/utilizing the tools the agency uses such as Excel, APPS tools, etc.

As with Complaint 1, for the instant complaint, Complainant contends S1 unfairly based the
evaluation on the desk audit assignment, which Complainant was not trained to do. (Complainant
also alleges, without evidence, that S1 assigned auditing work that Complainant did know how to
do to the other Auditors.)
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We recognize that in her testimony, C1 noted that “as a mentor, I thought the type of audit
assigned was too complex for a new hire.” However, the work was within the scope of a GS-12
Auditor position. Moreover, S1 identifies performance deficiencies that were not specific to the
desk audit. The Letter of Termination emphasized a lack of improvement, an ongoing disregard
of instructions, and “numerous repetitive, careless mistakes in things such as the audit programs
and working with the audit files and in performing mandatory administrative functions such as
timesheet completion.” Complainant later had an opportunity to demonstrate her auditing
knowledge with a different assignment, yet still did not show sufficient improvement.

On appeal, Complainant has not established a dispute of material fact exists to warrant a hearing.
Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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.
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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

April 12, 2019
Date