0120102086
03-28-2013
Pauline Tran, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Pauline Tran,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102086
Agency No. ARHQOSA09APR01580
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 31, 2010 final decision 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
On June 6, 2007, Complainant was hired as a Staff Auditor, Level IV, YA-511-01, at the Agency's Force Protection Division, U.S. Army Audit Agency (USAAA) in Alexandria, Virginia, subject to a two-year probationary period.
On July 14, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of national origin (Vietnamese) when:
on April 7, 2009, she received a notification that effective April 21, 2009, she would be separated from her Auditor position during her probationary period. Complainant submitted her resignation on April 8, 2009 which she contends resulted in a constructive discharge.
At the conclusion of the investigation, Complainant was provided 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 on March 31, 2010, pursuant to 29 C.F.R. � 1614.110(b).
In its March 31, 2010 final decision, the Agency found that Complainant did not establish a prima facie case of national origin discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of national origin, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The Audit Manager, also Complainant's annual rater (A1), stated that he was the deciding official to terminate Complainant during her probationary period. A1 stated that he had concerns with Complainant's written and oral communication skills. A1 stated that communication is "critical because we talk with command personnel on a regular basis. We interview command personnel for various commands. From assignment to assignment you're working with different people, different command personnel, civilians, military, contractor personnel." A1 stated that he gave Complainant feedback on to improve her communication skills. A1 stated that on December 18, 2008, he met with Complainant to discuss her performance plan for the year and "we went through the performance objectives and what the expectations were. And at that time [Complainant] shared with me that her area that she needed to improve in was communications. That it had been brought to her attention previously, and that she was trying to . . . improve in that area. And, she was also given an opportunity to attend some additional training relative to communications."
A1 stated that Complainant also received feedback from other agency officials "that had previously supervised her. The auditors-in-charge, and the audit manager, and her annual rater from the prior year, which was [named agency official]." A1 stated that in the beginning of 2009, Complainant was going to complete a Workload Survey and then work with him on an audit assignment "at the beginning of January [2009]. That slipped to the end of January [2009]. Then it slipped to the end of February [2009]. And as the time was slipping by I was inquiring about why. And then we started discussing her performance and that we had to make a decision dealing with her retention during this probationary period." A1 further stated "we had individuals, even command personnel, who had difficulty in understanding [Complainant] during the interviews. And, therefore, other auditors would step in and kind of complete the interview process. And she was aware of this." A1 stated that Complainant's written communications "did improve a little over time. However, the oral communications we didn't feel like improved to the point where we would like to retain her." A1 stated that Complainant's national origin was not a factor in his determination to terminate her during her probationary period.
The Auditor-in-Charge (AIC) stated that at that point she relocated several of Complainant's working papers "based on the sequence I was setting out for the working papers. And so I think [Complainant] e-mailed me and she said 'you deleted my working papers.' And 'before you delete anything else in the future, would you ask me or something?'" AIC stated that she found Complainant's tone to be "totally inappropriate." AIC stated that she responded to Complainant's e-mail informing her that she did not delete her working papers and "for you [Complainant] to accuse me of deleting your working paper is - - that's just not professional." AIC stated that there were other occasions where Complainant's responses "to me weren't quite respectful. So we would talk a lot and [Complainant] would cut me off, jump in, speak over me, a lot of times when we were with other people. And she didn't just do it with me; she did it with other people. So I pulled her up on it. We sat down and talked and I let her know that we need to really be respectful of each other."
Further, AIC stated that she had concerns with Complainant's working papers because "they weren't being prepared according to the guidance and they weren't really adding value because if we're preparing working papers, again, the whole goal is to be able to support a report in the end." Specifically, AIC stated that she had issues where Complainant "was writing working papers, but not answering the purpose of the paper or - - yes, not answering the purpose of the paper. And so if you're not answering the purpose of the paper, it's not meeting Agency standards." AIC stated that she had conversations with Complainant "on more than one occasion about this and it seemed like she couldn't really understand what the point was." AIC stated while Complainant is intelligent, her working papers "did not convey her analytical ability."
AIC stated that Complainant "loved to get information and she didn't have a problem as far as her desire to communicate that information. I think, however, despite her proactiveness, there wasn't effective communication enough. There were two issues there. I think one as the analytical ability again because there would be a lot of times where I'm like I know she knows this. Sometimes I would feel like that. But when [Complainant] communicated it, it got kind of scrambled. So it's like she didn't organize her thoughts. And you could tell that because when she began to speak, you really couldn't follow where she was going with the idea." Furthermore, AIC stated that she did not discriminate against Complainant based on her national origin.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant has not provided any evidence that would raise an inference of national origin discrimination, such as demonstrating that similarly situated non-Vietnamese employees were treated more favorably under similar circumstances. Complainant contended that national origin discrimination can be inferred in this because of her "manner of speaking." While comments about accent may raise an inference of national origin discrimination in some instances, merely expressing an inability to understand a person's "manner of speaking" does not necessarily reflect animus based upon national origin. The Commission notes the Agency's discussion of a range of concerns about Complainant's performance beyond oral communication: i.e. concerns over working papers (her failure to prepare them according to Agency guidance, not addressing the purposed of the papers); a lack of demonstration of analytical ability; and comments to Agency officials that were perceived as disrespectful in nature. Therefore, we find that the Agency properly determined that Complainant was not discriminated against on the basis of national origin.
We acknowledge that Complainant, on appeal, argues that Agency's final decision "reflected only one side of the story." For instance, Complainant states "although I might not speak/write English as fluently as native English speaker; however, my record showed that I had successfully completed two audits, and my recommendations were implemented immediately by the DA." However, despite the above referenced arguments, we find that the investigation was properly conducted, and that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 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
March 28, 2013
__________________
Date
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0120102086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102086
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0120102086