Complainant,v.Gina McCarthy, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 12, 2014

0120114196 (E.E.O.C. Mar. 12, 2014)

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

,
Complainant,

v.

Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.

Appeal Nos. 0120121530 & 0120114196
Agency Nos. 20080029R07; 20090007R07 & 20090059R07

DECISION
On September 12, 2011 and February 15, 2012, Complainant filed appeals from the Agency’s
July 30, 2011 and November 13, 2012, final decisions (FAD1 and FAD2, respectively)
concerning her three equal employment opportunity (EEO) complaints 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. The Commission deems the appeals timely and accepts
them for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS both FAD1 and FAD2.

BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Management
and Program Analyst, GS-343-12, in the Information Resources Management Section in the
Agency's Region 7 located in Kansas City, Kansas. On March 13, 2008, Complainant filed
Complaint 1 (Agency No. 20080029R07) alleging that the Agency discriminated against her on
the bases of race (African-American), sex (female), age (61), and in reprisal for prior
protected EEO activity when: (1) she was subjected to a hostile work environment; (2) she was
denied training opportunities; (3) on October 31, 2007, her supervisor officially notified her
that her within grade increase (WIGI) was denied because she received a "minimally
satisfactory" performance rating on her 2006 annual appraisal; (4) there was a lack of
management support for her work; and (5) management interfered with her work performance
by creating an intimidating and discriminatory work environment.

On October 8, 2008, Complainant filed Complaint 2 (Agency No. 20090007R07) which
alleged that Complainant had been subjected to discrimination and harassment on the same
bases when: (1) she was denied a WIGI on August 13, 2008; (2) she was removed from the
Agency’s daily flex schedule (DFS) and placed on leave restriction on August 7, 2008; (3) on
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July 23, 2008, her request for emergency leave was approved with certain stipulations; and (4)
management continued to interfere with her work performance.

On June 29, 2009, Complainant filed Complaint 3 (Agency No. 20090059R07) which alleged
that she had been subjected to discrimination and harassment on the same bases when the
Agency: (1) refused to permit her to participate in the medical flexiplace program in 2009 and
2008; (2) denied her WIGI on September 15, 2009, and failed to inform her of the denial in a
timely manner; (3) extended her leave restriction on March 26, 2009; (4) denied her training
request in March 2009; (5) issued her unfair appraisals in 2008 and 2009; (6) officially
reprimanded her on November 7, 2008; (7) refused to permit her to attend the Records
Management Conference on August 13, 2008; (8) denied her WIGI on August 13, 2008 and
failed to notify her of the denial in a timely manner; (9) removed her from the DFS program
on August 7, 2008; (10) initially placed her on leave restrictions on August 7, 2008; (11)
conditionally granted her request for emergency leave in July 2008; (12) denied her
participating in the DFS program in July 2008; (12) placed her on fixed schedule for three
weeks in April 2008; (13) undermined her authority to perform her duties as Contracting
Officer Representative for the Records Center Management contract; (14) interfered with her
ability to perform her duties as the Regional Records Officer; and (15) informed her that she
should retire if she disagreed with her supervisor’s directions.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROIs) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). For Complaint 1, Complainant timely requested a hearing but
subsequently withdrew her request. For Complaints 2 and 3, she did not request a hearing.
The Agency issued FAD1 addressing Complaint 2 and FAD2 addressing Complaints 1 and 3
pursuant to 29 C.F.R. § 1614.110(b).1

FACTUAL BACKGROUND
Complainant was responsible for ensuring that Region 7 had a quality compliant records
management program. Prior to December 2007, Complainant's first-line supervisor (S1A) was
the Chief of the Safety, Infrastructure, and Information Management Branch (SIIMB).
Complainant’s second-level supervisor (S2A) was the Acting Assistant Regional Administrator,
in Region 7. After December 2007, Complainant's first level supervisor (S1B) was the Chief
of the Information Resources Management Section. From May 2008 to December 2009,
Complainant's second level supervisor (S2B) was the Chief of SIIMB. After December 2009,
the Acting Chief of SIIMB, became Complainant's second-level supervisor (S2C).

1 Pursuant to the Agency’s notice of appeal rights, Complainant appealed her WIGI claims to
the United States Merit Systems Protection Board. Accordingly, the WIGI claims are not
before us on appeal. 29 CFR § 1614.302(d)(3).
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Leave Restrictions

The record shows that due to her poor performance, failure to meet due dates, excessive
absences and late arrivals to work, Complainant was removed from the Agency’s DFS from
December 24, 2006 through July 7, 2007. The DFS allows employees to vary their start times
between 6:15 a.m. and 9 a.m., as long as they work forty hours per week. It is unclear from
the record whether Complainant was put back on the DFS between July 2007 and August
2008.

In July of 2008, Complainant requested emergency leave, which S1B granted but informed
Complainant that she was still responsible for work assignment due dates that had previously
been agreed upon. When Complainant returned to work on August 7, 2008, S1B gave her
separate memorandums, via e-mail, again removing her from the DFS and placing her on leave
restriction. In the leave restriction notice, S1B notified Complainant that regularly scheduled
appointments and events required three days advanced notice. For emergency leave,
Complainant was required to call in prior to her scheduled time and speak directly with S1B,
S2B or S2B’s supervisor, to receive approval. Complainant was also notified that she would
be charged Absent Without Leave if she did not present appropriate medical documentation.
The leave restriction was effective August 1, 2008, to February 1, 2009. S1B explained that
he placed Complainant on leave restriction because of her zero leave balance, failure to request
leave in advance and the several days of leave without pay she had incurred. Complainant's
leave restriction was extended in March of 2009 because Complainant continued to have the
same leave issues. Complainant was taken off the leave restriction and allowed to use the DFS
in March 2010 because S1B noticed an improvement in Complainant's leave management.

Denial of Medical Flexiplace

Under the Agency's medical flexiplace program, an employee may work at an alternative work
location other than an employee's official work station for a period which normally will not
exceed six months: (a) if an employee has a medical condition which does not affect the
employee's ability to perform her work assignment at an alternative work location; and (b) if
among other things, an employee does not have any documented performance or conduct
deficiencies within the preceding twelve months. On December 4, 2009, Complainant
submitted a request to participate in the medical flexiplace program.2

S1B advised
Complainant’s that she was not eligible to participate in this program because of her
performance deficiencies. However, S1B also advised Complainant that she could pursue a
request for a reasonable accommodation under the Rehabilitation Act. The record indicates
that in or about March 2010, Complainant requested and received a reasonable accommodation
pursuant to the Rehabilitation Act.

2 S1B denies that Complainant submitted a medical flexiplace request in 2008, and the record is
devoid of evidence to support Complainant’s assertion that she made such a request at any time
in 2008.
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Denial of Training 2008 & 2009

In or about December 2007, S1A denied Complainant’s request to attend Lotus Notes
administration training. Complainant asserts that she had essentially performed that function
within her branch since 2002 and that S1A’s denial put the Records Program at an extreme
disadvantage. S1A states that this Lotus Notes administration training was not an ideal training
option for Complainant and advised her to keep searching for an appropriate training course.

S1B denied Complainant’s request to attend the Records Management Conference in August
2008 because he did not feel it was important. Complainant alleged that she had attended the
Records Management Conference in 1998, and that if she had been permitted to attend this
conference, Region 7 would not have experienced adverse issues with the Enterprise Content
Management when it was rolled out by headquarters. The undisputed record shows that no one
from Region 7 attended the Records Management Conference in 2008.

S1B did not approve Complainant’s request to attend the Stepping Up to Supervision training
in 2009 because S1B believed that it was not relevant to her GS-12 position as Regional
Records Officer and Record Center Project Officer since Complainant was not a supervisor or
team leader at that time.

Official Reprimand – November 2008

S1B stated that when he became Complainant’s supervisor in or about December 2007, he
asked every member of his staff to copy him on business correspondence and invite him to
meetings so he could learn about the jobs and responsibilities of his staff. Complainant was on
an extended leave of absence at the time. S1B states that when Complainant returned from
leave he made the same request to her.

In a memorandum dated July 2, 2008, S1B instructed Complainant to copy him on all business
correspondence and to invite him to any meetings she had. S1B reiterated those instructions
during Complainant’s mid-year review on July 16, 2008. Despite these instructions, S1B
asserts that he continued having difficulty getting Complainant to comply with his directive.
Accordingly, in November 2008, S1B officially reprimanded Complainant for failing to follow
his instructions.

Complainant asserts that she followed her supervisor’s directive but believed she was only
required to forward information on pressing matters and formal meetings. In addition,
Complainant asserts that she was the only person required to follow this directive.

Interference with Job Performance – Hostile Work Environment

Complainant asserts that S1A refused to provide her with any management support even
though she was overworked. Specifically, Complainant states that she single-handedly served
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as the Regional Records Officer for all Agency programs. At the same time, Complainant
served as the Records Center Project Officer for all Agency records. However, Complainant
states that prior to her tenure, her position was broken down into four separate functions with
four different persons performing the same duties. Complainant also asserts that S1A began to
blame her for the inadequacy of the program even though there were inadequate resources to
run the program.

Complainant also states that after S1B became her first level supervisor, he began harassing
her by making disparaging remarks about her to co-workers, trying to make her look bad at
meetings and disregarding her comments and observations. She claims that S1B told one of
the contract specialists who worked with Complainant (COR1) that Complainant should be
removed from the Records Center contract. S1B denies making the statement and states that
the statement was made by COR1. COR1 corroborates S1B and admits to questioning
Complainant’s competency. In addition, Complainant asserts that S1B undermined her
authority as a Contracting Officers Representative by participating in meetings she had with
contractors and by dealing directly with the contractors without asking for her input.

Complainant also asserts that S1B subjected her to other negative personnel actions such as
refusing to permit her to participate in the Agency’s DFS and flexiplace programs, issuing
minimally satisfactory performance ratings, issuing official reprimands, denying training
requests, and subjecting her to general disrespectful treatment. Finally, Complainant alleged
that he told her that "he would go ahead and retire," if he had a "supervisor he ... didn't agree
with."

ANALYSIS AND FINDINGS
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its employment actions, which Complainant has not established, by a
preponderance of the evidence were pretext or otherwise motivated by discriminatory or
retaliatory motives. The record supports Complainant’s supervisors’ decision to place her on
leave and flexiplace restrictions. The testimonial and documentary evidence shows that
Complainant’s performance remained consistently poor while her leave was excessive and
often unplanned. In addition, management officials testified that Complainant was seen
abusing the arrival/departure timeframes under the DFS. The record shows that given
Complainant’s various performance problems, S1A and S1B needed to monitor her
performance more closely.

With respect to Complainant’s allegations of training, the record shows that S1A and S1B felt
that there were more appropriate training opportunities for her than the three that she
requested. Moreover, documentary evidence in the record shows that during the relevant time
frame Complainant attended 24 training courses which amounted to more training than 19 (out
of 28) of her peers had completed during the same time-frame.

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With respect to the official reprimand, we find that the preponderance of the testimonial
evidence supports S1B’s assertion that he requested every member of the staff to copy him on
business correspondence and invite him to meetings. While the record also indicates that S1B
may have been more focused on Complainant’s compliance with his directive as compared to
her co-workers, the record indicates that the basis for such disparate focus had to do with the
fact that S1B did not have a background in Complainant’s area of responsibility, she appeared
to be blatantly disregarding his directive, and she had performance deficiencies.

We also find insufficient evidence in the record to support Complainant’s claims that she was
subjected to harassment. Both supervisors denied interfering with Complainant’s work,
subjecting her to a hostile work environment, or being motivated by Complainant’s race, sex,
age or prior EEO activity. Additionally, while the record shows that Complainant initially
performed all of Region 7's record management functions after her predecessor’s retirement
prior to 2007, the record shows that the number of staff had progressively grown to a higher
level than had existed in 2004, but at the same time, the number of records management duties
performed by Complainant had been substantially reduced between 2007 and 2009.

In addition, the record shows that S1A had supported Complainant's work activities by: (1)
providing support to Complainant in addressing customer service issues raised by Region 7’s
Superfund Division; (2) initially assigning the branch secretary, (COR2) to assist Complainant;
and (3) selecting COR2 for the position of Records Specialist to assist Complainant in
performing her record management duties. Furthermore, S2A offered to provide assistance to
Complainant in completing the vital records component of the Continuity of Operations Plan.

Documentary and testimonial evidence also supports S1B’s assertion that he provided
Complainant with assistance in performing her record management duties. Specifically, S1B
asserts: (1) there were five or six information technology individuals under his supervision who
were able to provide technical assistance to Complainant but that Complainant chose not to use
this available assistance; (2) he had contract specialists under his supervision who handled
those additional duties along with their other assigned duties; and (3) Region 7’s information
technology contract was also managed by one staff member even though this contract involved
more work and more personnel than the contract for the Regional Records.

In addition, the record is devoid of evidence in support of Complainant’s assertion that
management officials made disparaging remarks or otherwise treated her disrespectfully. To
the extent that management officials treated Complainant differently than her peers, the record
shows that such treatment was due to Complainant’s poor performance and excessive absences,
rather than her race, sex, age or prior EEO activity.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM FAD1
and FAD2.

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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 tends 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
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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

Date
March 12, 2014