Complainant,v.Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120120722 (E.E.O.C. Jun. 14, 2013)

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

Complainant,

v.

Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.

Appeal No. 0120120722

Hearing No. 471-2010-00039X

Agency No. FDICEO-090020

DECISION

Complainant filed an appeal from an Agency’s final order dated October 21, 2011, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

The record indicates that Complainant, a Financial Institution Specialist (FIS) under the
Corporate Employee Program (CEP), filed her complaint on August 10, 2009, which was later
amended, alleging discrimination as following:

A. Whether she was subjected to a hostile work environment based on race (African-
American) and age (over 40) when:

(1) From October 2008, and continuing, she was not provided adequate training to
allow her to complete the Risk Management (RM) rotation of the CEP, and her
performance was scrutinized more than the other FIS employees;
(2) On June 11, 2009, at the direction of the Chief, Performance Management, CEP,
Corporate University (CU), she was denied the opportunity to move forward with
the CEP and graduate with her FIS class on June 29, 2009, based on negative
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Developmental Feedback Forms (DFFs) she received between January, and June,
2009;
(3) On June 19, 2009, she received a 45-day Letter of Warning (LOW) signed by the
Chief; and
(4) On July 17, 2009, she received a negative DFF that did not contain a logical
evaluation of her performance and contained "needs development" ratings and that
did not properly apply FDIC's performance management standards. (She also
alleged that she was retaliated against regarding this incident.)

B. Whether she was subjected to discrimination in reprisal for prior EEO activity when:

(1) On July 2, 2009, the Detroit Field Supervisor threatened not to pay her for the time
she was out on sick leave and she subsequently was not paid for two of the days she
was out on sick leave;
(2) On July 9, 2009, the Supervisory Examiner rejected her doctor's note as insufficient
and instructed her to submit medical documentation that included diagnosis,
prognosis and duration, when she took more than three days of sick leave; and
(3) On July 9, 2009, when she returned from sick leave, she was told by the Detroit
Field Supervisor that she should have reported to the Grand Rapids Field Office and
that her pay would be reduced for the time she had been at the Detroit Field Office
that day. She was subsequently not paid for one hour.

C. Whether she was subject to retaliation and harassment based on race (African-
American) and age (over 40) when on August 12, 2009, she received a DFF that
contained "needs development" ratings and that did not properly apply FDICs
performance management standards.

D. Whether she was subject to retaliation and harassment based on race (African-
American) and age (over 40) when:

(1) On September 11, 2009, she received an unsigned DFF that contained "needs
development" ratings and that did not properly apply FDIC's performance
management standards for a FIS in the risk management rotation;
(2) On September 21, 2009, she received a letter from the Deputy Learning Officer,
CU, terminating her employment during her trial period for unsatisfactory
performance, effective close of business September 23, 2009; and
(3) On October 8, 2009 (pay period 19), she was paid for only 45 hours and not 63
hours of work during her last pay period of employment.

The record indicates that at the conclusion of the investigation, Complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ, after a hearing, issued a decision
on October 14, 2011, finding no discrimination, which was implemented by the Agency in its
final order.

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ANALYSIS AND FINDINGS

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.

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 Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ noted that on March 3, 2008, Complainant began her
employment with the Agency, subject to a two-year probationary period, as a FIS in the
Agency’s CEP. Under the CEP, Complainant was required to complete a series of rotational
assignments during her first year of employment and ultimately become a commissioned bank
examiner within four years. The record indicates that Complainant successfully completed
rotations in the Division of Supervision and Consumer Protection and the Division of
Resolutions and Receiverships.

With regard to claims A(1), A(2), and A(3), the AJ stated that in October 2008, Complainant
began her final RM rotation which consisted of her being out in the field for bank examinations
with a team of Agency bank examiners and being given various component assignments to
complete. During the RM rotation, indicated the AJ, all FIS employees, including
Complainant, were provided with training and instructions by the Examiner in Charge (EIC)
who gave feedback through use of a DFF. The AJ stated that DFFs were frequently provided
to FIS employees late, sometimes by up to a few months and after the FIS had completed other
bank assignments.

The AJ stated that Complainant, after her fifth bank examination, received a “needs
development” rating on her DFF indicating that she was being difficult and not following
instructions given to her by a senior FIS and meeting with bankers without another examiner
present, which was contrary to guidance she had previously received. The AJ indicated that
Complainant’s subsequent bank examinations also revealed that she was repeatedly questioning
instructions given to her and not completing her assigned work at all or in a timely manner.
Also, stated the AJ, Complainant had problems with her team and interpersonal skills,
including being argumentative, not being receptive to receiving feedback, and refusing to
attend a feedback meeting. Thus, Complainant received several “needs development” ratings
on her DFFs. Due to her performance deficiencies, stated the AJ, Complainant was issued the
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LOW on June 19, 2009, and was informed that she would not be graduating with her class. In
the LOW, Complainant was informed that she would be working on development bank
assignments, including acting as an Operations Manger (OM), in order to help her to improve
her performance. Regarding this incident, the AJ determined that Complainant failed to show
that she was treated less favorably than a similarly situated employee under similar
circumstances.

With regard to claims B(1) and B(2), Complainant claimed that she was sick from June 23,
through June 30, 2009. The Agency stated that during the relevant time period at issue,
although Complainant was asked to provide medical documentations to support her more than
three days of sick leave, she only provided a doctor’s note stating that “[Complainant] was
seen in this office on 06-24-2009. Her next appointment is scheduled for 07-09-2009.” The
AJ stated that the foregoing note, without any medical diagnosis, prognosis, and duration, did
not justify her seven days of sick leave. The Agency stated that Complainant was properly
paid for three days of sick leave, for which she did not need documentation, and two days of
annual leave, but she was not paid for the two days of sick leave for which she did not provide
the required documentation.

With regard to claim B(3), the AJ noted that prior to the relevant time period at issue,
Complainant took preapproved annual leave through July 8, 2009, following her sick leave,
described above, and as a result, she was not able to participate in her first development
assignment under the LOW. The AJ stated that on July 9, 2009, Complainant erroneously
reported to the Livonia office for her work instead of the Grand Rapids office as she was
previously instructed to do. The AJ indicated that as a result, Complainant was required to
report to the Grand Rapids office and was denied pay for the time she had not reported to the
correct office.

With regard to claims A(4), C, D(1), and D(2), the AJ stated that during her LOW
development assignments, Complainant continued to have performance issues and resisted
feedback and received a number of “needs development” ratings on her DFFs. Based on the
foregoing, the Chief recommended Complainant’s removal from her employment during her
probationary period. The Deputy Learning Officer, based on the Chief’s recommendation,
issued Complainant the letter of termination. In the letter, Complainant was also given an
option to resign instead of termination. Complainant resigned effective September 23, 2009.
With regard to D(3), the AJ stated that Complainant was not paid for those hours at issue due
to a miscommunication and the payment was ultimately made to her but was delayed due to a
clerical error and not due to any discrimination.

Based on the foregoing, the AJ determined and we agree that the record was devoid of any
evidence that Complainant was treated differently than a similarly situated employee under
similar circumstances. The AJ also determined that Complainant did not have the initiative,
self-study, or ambition similar to other FIS employees, identified by her, who successfully
completed the program. Rather, Complainant, stated the AJ, was characterized as difficult and
argumentative and was resistant and refused to attend a feedback meeting. The AJ determined
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that Complainant failed to establish a case of hostile work environment on any discriminatory
basis. The AJ also determined and we agree that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual.

On appeal, Complainant disputes the AJ’s findings by raising new matters, including the terms
of her employment subjecting her to a two-year probationary period, which are not the issue in
the instant case nor were they raised by her during the hearing. We note that the record
clearly indicates that Complainant agreed to the terms of her employment at the beginning of
her employment. Complainant also claims that her EIC’s feedback concerning her work
performance via DFFs was improper and inadequate. However, we find that these matters
were already presented to the AJ during the hearing and the AJ properly considered the matters
in her decision. After a review of the record, we find that Complainant failed to show that her
work performance, which was the ultimate basis for her termination, during the relevant time
period at issue, was in fact adequate to meet her probationary requirements. Upon review, we
find that the AJ’s factual findings of no discriminatory intent are supported by substantial
evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by
substantial evidence.

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
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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 14, 2013
Date