Opinion
Case No. 5:00-CV-123.
September 19, 2001
ORDER
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant's Motion For Summary Judgment (docket no. 19) is GRANTED
and Plaintiff's Complaint is DISMISSED.
This case is closed.
OPINION
Plaintiff, Gloriann Sanchez, a former employee of Defendant Army, brought this suit for discrimination based on race and disability and for reprisal under Title VII, 42 U.S.C. § 2000e-2000e-17, and for disability discrimination under the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff also appeals the decision of the Merit Systems Protection Board ("MSPB") upholding her termination. Now before the Court is Defendant's motion for summary judgment.
Facts
Plaintiff was hired by the U.S. Army as a Technical Manual Writer in 1988. She held that position at the Armament and Chemical Acquisition and Logistics Activity at Rock Island, Illinois at all times relevant to this lawsuit. In 1989, she also worked as a counselor for the Army's Equal Employment Opportunity ("EEO") office at Rock Island.
Plaintiff's basic duty was to produce the Equipment Improvement Report and Maintenance Digest ("EIR Digest") on a quarterly basis. The EIR Digest is a technical manual given to field personnel to update them on changes in machinery and equipment. One document is typically 20-30 pages long. For the years preceding 1994, Plaintiff received good performance ratings for her work.
Plaintiff was involved in a car accident in April 1993 and was out of work for two months. She returned to work in July with restrictions due to an injured shoulder and knee. She was told by her doctor not to lift or pull weights over 20 pounds, to limit the rotational movement in her knee, and not to type at a computer for more than 4 hours per day. Plaintiff eventually underwent reconstructive surgery on her knee in May 1995, and on her shoulder in September 1995.
Plaintiff was reassigned during an Army reorganization in 1993. Ronda Granbois ("Granbois") became Plaintiff's first-line supervisor in October 1993. Plaintiff continued to produce EIR Digests as a Technical Manual Writer/Editor. In 1994, the quality of Plaintiff's work began to deteriorate. She had been participating in a Women's Executive Leadership ("WEL") program, which demanded time and some travel for various assignments. In anticipation of her absence, Plaintiff developed production milestones outlining the deadlines for the EIR Digest production. (See Am. Compl. ¶ 25; Production Milestones, attached to Pl.'s Br. Resp. Ex. Q.) The EIR Digest did not get produced on time due to Plaintiff's absence, her physical restrictions, and the repeated need for corrections due to her poor writing and editing. Granbois eventually pulled Plaintiff off the WEL program on December 23, 1994, because of her unsatisfactory performance in producing the EIR Digest for that quarter. (See Granbois Statement, Pl.'s Resp. Br. Ex. U.)
On November 7 and on December 12, 1994, Granbois met with Plaintiff regarding the shortcomings in her work product. (See id.; Initial Decision of ALJ Miksa, at 4, Def.'s Br. Supp. Ex. J.) The Digests she was producing were littered with spelling, typographical, punctuation, and grammatical errors. Granbois informed Plaintiff that her work was "totally unacceptable." (See Granbois Statement, Pl.'s Br. Resp. Ex. U.)
Ron Gedye, the Equipment Publications Control Officer, reviewed the work of 30 technical writers. In reviewing Plaintiff's submissions in late 1994 and early 1995, he stated, "I have never seen anything as poorly done as [the EIR Digest]. . . . It was so riddled with errors that it basically had to be rewritten." (Gedye Decl. at 2, Pl.'s Br. Resp. Ex. F.)
On January 3, 1995, Plaintiff was notified she was being placed on a Performance Improvement Plan ("PIP"). (Pl.'s Br. Resp. at 4.) This was a probationary arrangement whereby Plaintiff would be closely monitored for improvement in the quality of her work. She was instructed to turn in drafts of her EIR Digests to her supervisor for review. Granbois would edit the drafts and return them to Plaintiff for reworking. Plaintiff was not given written notice of the standards, which included the deadlines she had prepared the year before when she entered the WEL program, until February 23, 1995. (Pl.'s Br. Resp. at 5; Performance Warning Mem. of 2-23-95 from Granbois to Sanchez at 6, Def.'s Br. Supp. Ex. A-l.) The PIP permitted her to make 35 errors in the initial draft she submitted and then five errors for the final draft after its review and correction. (Am. Compl. ¶ 233.)
The PIP period was extended until July 7. During this time, two EIR Digests were produced, both full of errors and falling well below the standards Plaintiff was given. Plaintiff also failed to meet the production deadlines she was given in her PIP notice. (Am. Compl. ¶¶ 98-100.) Plaintiff twice requested editorial and/or technical assistance for her duties and was denied. Both Digests were eventually completed by other employees due to Plaintiff's failure to provide an acceptable work product.
Plaintiff filed an informal complaint against Granbois with the EEO office on February 1, 1995. She accused Granbois of race and disability discrimination and claimed that Granbois singled her out for scrutiny and held her to a higher standard than other employees.
On July 26, 1995, Granbois advised Plaintiff of her proposed removal. Plaintiff filed another EEO complaint on August 3. Her second-line supervisor, Janet Snyder, issued the decision to remove Plaintiff on August 24. She concluded that Plaintiff failed to perform her duties at an acceptable level of quality prior to her improvement period and that she failed to improve her performance by the end of the PIP. (Snyder Mem., Def.'s Br. Supp. Exs. B-1, B-2.) Plaintiff's employment with Defendant was terminated on August 29, 1995.
Plaintiff filed a formal complaint with the EEO office at Rock Island on September 13, 1995, alleging race, national origin, and physical disability discrimination and reprisal. The Department of Defense, Office of Complaint Investigations issued findings on February 26, 1996. It found that Plaintiff's claims had no basis. The Equal Employment Opportunity Compliance and Complaints Review Agency concurred with this result on January 24, 1997. Plaintiff appealed the decision to the MSPB. Administrative Law Judge Gregory A. Miksa ("ALJ Miksa") was assigned to the case. During a telephone conference memorialized in a memorandum and ultimately approved by the parties, Plaintiff waived her other claims and stated that she was only asserting claims for discrimination based on disability and reprisal for engaging in protected activity. ALJ Miksa affirmed the Army's findings of no discrimination, and the full Board denied her petition for review.
Agency counsel Carrie Schaffner prepared the memorandum, and Plaintiff was given an opportunity to object or make corrections. (Mem. of 5-21-97 Tel. Conference, Def.'s Br. Supp. Ex. G.) She made numerous notations concerning the discovery issues discussed during the conference but did not assert that the memorandum incorrectly stated the claims she was pursuing. (Appellant's Resp. to Mem., 5-28-97, Def's Br. Supp. Ex. H.) Furthermore, in an Order from ALJ Miksa, the substance of the memorandum was noted as agreed upon and only the burdens for establishing disability discrimination and reprisal were provided to Plaintiff. (Order Confirming Status Conference, Def's Br. Supp. Ex. I.)
The EEOC concurred with the MSPB on August 31, 2000, and issued Plaintiff a Right to Sue Letter. She filed her Amended Complaint in this Court on February 9, 2000, alleging race and disability discrimination and reprisal for engaging in protected activity and appealing the MSPB's decision affirming her removal.
Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Matters outside the pleadings have been considered by the Court. Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant's motion for dismissal of the race discrimination and reprisal claims for failure to exhaust administrative remedies will be treated as a motion for summary judgment under Rule 56.
Discussion
Defendant makes three arguments in its motion. It argues that Plaintiff failed to exhaust her administrative remedies when she allegedly abandoned her race discrimination and reprisal claims before ALJ Miksa. It also asserts that Plaintiff has no proof to support her claims for disability discrimination or reprisal. Finally, Defendant contends that the decision of the MSPB was not arbitrary, capricious, or an abuse of discretion and should be affirmed. Each argument will be addressed in turn.
I. Failure to Exhaust Administrative Remedies
Federal employees desiring to bring discrimination claims in federal district court must first exhaust the available administrative remedies.Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967 (1976); Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992). Title VII implicitly mandates such exhaustion. 42 U.S.C. § 2000e-16(c). Claims must be raised before the EEOC prior to instituting suit to give the Commission an opportunity to attempt conciliation or settlement, or to otherwise resolve the dispute. Frank, 958 F.2d at 675 (citing Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 873 (6th Cir. 1984)).
A. Race discrimination claim
Defendant contends that Plaintiff withdrew the claim of race discrimination during the administrative process and cannot now reraise it. This Court agrees.
The memorandum of the telephone conference of May 21, 1997, between the parties and ALJ Miksa, prepared by agency counsel, states that at the outset Plaintiff confirmed the only claim she intended to pursue was disability discrimination. Plaintiff later stated that she also wanted to raise a claim of reprisal, to which the Judge assented. Plaintiff failed to mention her race discrimination allegation, indicating her desire to abandon it. In her memorandum of May 28 correcting the memorandum prepared by agency counsel, Plaintiff noted many corrections to the discovery issues discussed during the conference. At no time did she attempt to deny or correct her decision to only pursue the disability and reprisal claims. Furthermore, in his order of June 11, 1997, ALJ Miksa noted Plaintiff's acknowledgment of the accuracy of the memorandum of May 21. His comments to the parties indicate that the race discrimination claim had been dropped since he did not provide Plaintiff with any guidance as to her burden on that claim.
Plaintiff cites Wade v. Secretary of the Army, 796 F.2d 1369 (11th Cir. 1986), to argue that her claim should not be dismissed. This reliance is misplaced. In Wade, two black civilian employees brought a class action suit for race discrimination at Army hospitals in Georgia. The district court dismissed the claim for failure to exhaust administrative remedies. The appellants had failed to provide documentation regarding satisfaction of the requirements for a class action. The EEOC action was thus denied on procedural grounds, and the plaintiffs sought relief in a civil suit in federal district court. Id. at 1372. The issue before the Eleventh Circuit was whether the appellants were permitted to file an action in federal district court after being dismissed from agency review for failure to cooperate and procedural default. The Court of Appeals concluded that the denial by the agency on procedural grounds was a final agency decision, and no further administrative steps were required of the appellants to have their claims reviewed in the district court. Id. at 1378.
The facts in Wade are distinguished from the case before the Court. Here, Plaintiff did not merely fail to comply with procedural requirements at the administrative agency level. She initially filed the EEOC complaint and did allege race discrimination. She then abandoned her pursuit of that claim, and the Administrative Law Judge was never given the opportunity to address the issue because it was not before him. The plaintiffs in Wade defaulted for failure to comply with procedural requirements, and that default judgment was determined to be a final ruling on the issue. Plaintiff never reached that point here.
Wade explicitly states that the district court should determine whether the employee presented her claims so as to provide an opportunity to resolve the dispute. Id. at 1376. If not, then summary judgment is appropriate for failure to exhaust administrative remedies. Such is the case here.
Banner-Amold v. Runyon, No. 98-73389, 1999 U.S. Dist. LEXIS 11064 (E.D.Mich. June 30, 1999), supports this conclusion. The plaintiff, a female employee, had brought a sex discrimination claim against the Post Office. She initially appealed her demotion to the MSPB based on civil service challenges and Title VII grounds, but later dropped her claims of sex and age discrimination. She later filed a formal EEO complaint, which the Postal Service dismissed at the agency level because it was previously raised to the MSPB. She then filed suit in federal court. The district court dismissed the case for lack of jurisdiction. It stated that, "where the claimant chooses the option of raising his Title VII claim . . . before the MSPB, he is required to exhaust his claim in that forum before filing a civil action." Id. at *5 (citing McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995)). When a claimant abandons her race discrimination claim before the MSPB, she is foreclosed from asserting it in a civil action. Id. Thus, Plaintiff cannot assert race discrimination after abandoning it before ALJ Miksa.
Plaintiff alleges in her Amended Complaint that she was tricked or induced into abandoning that claim. (Am. Compl. ¶ 85.) The memorandum of the status conference indicates that she was asked what claims she was pursuing, to which she responded with only the disability claim. She later indicated her desire to add the reprisal claim. There is no indication whatsoever of deception or trickery on the part of agency counsel or ALJ Miksa.
B. Reprisal claim
Defendant also contends that Plaintiff's allegation of reprisal was also not exhausted in the administrative system. Unlike the race discrimination claim, Plaintiff's reprisal claim is properly before this Court.
Plaintiff exhausted her administrative remedies by pursuing the reprisal claim in the agency review and appeal to the MSPB. The summaries of the telephone conference indicate that Plaintiff wanted to press the issue, and the Order Confirming Status Conference from ALJ Miksa indicate the standards laid out to Plaintiff for such a claim. Indeed, ALJ Miksa ruled on the issue in his findings. The claim was pursued all the way through administrative channels and Plaintiff is free to bring a reprisal claim in this Court.
II. Failure to Establish Prima Facie Case of Reprisal
In order to establish a prima facie case of reprisal for participation in a protected activity, a plaintiff must show that: 1) she engaged in an activity protected by Title VII, 2) the exercise of her civil rights was known to the defendant, 3) thereafter, the defendant took an employment action adverse to the plaintiff, and 4) there was a causal connection between the protected activity and the adverse employment action. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citing Harrison v. Metro. Gov't, 80 F.3d 1107, 1118 (6th Cir. 1996)).
Plaintiff meets the first element of this claim in her performance as an EEO counselor in 1989, and her filing EEO complaints in February and August 1995. These are protected activities under Title VII. 42 U.S.C. § 2000e-3(a). Plaintiff satisfies the second element of proof by producing her 7-B employment card. This document lists her employment history, including her service as an EEO officer. (Pl.'s Br. Resp. Ex. C.) As Plaintiffs supervisor, Granbois would have access to this card when Plaintiff was transferred under her. Furthermore, the EEO complaints were filed against Granbois, so she certainly would have had knowledge of those activities. The exercise of Plaintiff's rights under Title VII was known to Defendant.
Defendant took adverse employment actions against Plaintiff by placing her on the PIP probationary period and by ultimately terminating her employment.
Placement on a PIP and eventual removal can be viewed as two distinct adverse employment actions. In that case, Plaintiff's removal did come after her filing of the EEO complaints. Due to the close connection between the PIP and the termination, specifically Plaintiff's poor evaluations and failure to improve after repeated warnings and the probationary period, this Court will view them as one adverse action.
Plaintiff's claim for reprisal fails, however, due to lack of proof of the fourth element, a causal connection between her engagement in a protected activity and the adverse employment actions taken against her. To meet this requirement, Plaintiff must produce, "sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action."Nguyen, 229 F.3d at 563 (citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)). According to the court in Nguyen, evidence that the defendant treated the plaintiff differently from similarly situated employees or that the adverse action was taken soon after the protected activity is relevant to causation. Id.
Plaintiff alleges that the Defendant's knowledge of her EEO counseling duties creates an inference of retaliation. This activity took place six years prior to her probation and eventual firing. In Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir. 1986), the court held that a period of more than four months was too long to support an inference of reprisal. Id. at 1272-73. Beyond the constructive knowledge from the 7-B card in her supervisor's possession, there is no evidence to link Granbois' actions with the Plaintiffs duties as an EEO counselor. When there is no direct causal evidence, reprisal must be shown through knowledge together with closeness in time. Nguyen, 229 F.3d at 566-67. Here Plaintiff has only demonstrated constructive knowledge of her protected activity, and the adverse employment action was too remote in time to infer a causal connection between them.
As to the EEO complaints, the Plaintiff's inference fails because the adverse employment action took place before the complaints were filed. As early as November 1994, Granbois was criticizing Plaintiff's work. On at least two occasions, they met to discuss the severe shortcomings in Plaintiff's performance. It is undisputed that Plaintiff was placed on PIP on January 3, 1995. Plaintiff's brief makes consistent reference to the written documentation given to her on February 23. She acknowledges, however, that she was actually placed on PIP back in January, before her filing of the EEO complaint. Her placement on the PIP and her failure to improve during this period eventually led to her removal. Plaintiff cannot raise an inference of causation when the adverse employment action was taken prior to her engagement in protected activity.
Plaintiff argues that she can demonstrate a causal connection by proof that she received favorable performance evaluations before engaging in protected activity and then negative evaluations thereafter. Rutherford v. Am. Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977). She cites her positive evaluations for the years prior to 1994 as evidence of this. She even received a strong recommendation from Granbois for participation in the WEL program, dated February 8, 1994. Again, the problem with Plaintiff's argument here is that her poor evaluations began well before her filing of the EEO complaint on February 1, 1995. It is undisputed that Granbois criticized her work in November and December 1994, and that Plaintiff was placed on PIP on January 3, 1995. Plaintiff cannot demonstrate that her probation and eventual firing were in retaliation or causally connected to her EEO complaints.
Assuming that Plaintiff could meet the burden for establishing a prima facie case, the burden would then shift to Defendant to provide a nondiscriminatory motive for the action. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Defendant asserts that Plaintiff was fired for failing to achieve Critical Elements 2 and 3 of her official duties. Those duties included producing technical publications, conducting leadership programs and on-the-job training, making professional and policy decisions affecting her assigned program, conducting program reviews, and developing corrective measures to solve program problems and deficiencies. (Def's Br. Supp. Ex. A-1.) Under Army personnel policy, failure to meet any of these standards correctly, independently, and on time would result in a negative performance rating. Defendant has consistently asserted that Plaintiff was removed for failure to meet her performance standards and failure to improve after probation. Defendant has adequately provided a legitimate, nondiscriminatory motive for Plaintiff's removal.
Once the legitimate, nondiscriminatory motive is articulated, the burden shifts back to the plaintiff to provide proof that the reason given was merely pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2747 (1993). Plaintiff has not provided any evidence of pretext. Judging by the papers she has filed with the Court, which have been full of punctuation, typographical, and grammatical errors, it is not surprising that she lost her job as a manuals writer. Her own brief is evidence against her.
III. Failure to Establish Prima Facie Case of Disability Discrimination
Defendant asserts that Plaintiff cannot establish a prima facie case of discrimination based on a disability. Plaintiff brought the claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794, which requires her to prove that: 1) she is disabled under the Act, 2) she is otherwise qualified for the job with or without reasonable accommodation, 3) she suffered an adverse employment action, 4) the employer knew, or had reason to know, of her disability, and 5) after she was terminated the position remained open, or she was replaced. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996). Proof of these facts creates an inference that the employer discriminated against the disabled employee because of the handicap. Id. As with Title VII claims, the burden then shifts to the defendant to offer a legitimate reason for the action; then, the plaintiff has the burden of proving pretext.McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (1973).
Plaintiff's claim fails here because she is not disabled under the Act. An individual with a disability is "any person who (i) has a physical or mental impairment that substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities are defined by the Commission as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The factors listed for the Court to consider when determining whether Plaintiff's condition reaches the level of substantially limiting a major life activity include: 1) the nature and severity of the impairment, 2) the duration of the impairment, and 3) the permanent or long term impact of the impairment. 29 C.F.R. § 1630.20)(2).
The Rehabilitation Act was amended in 1992 to apply the ADA standards to complaints of discrimination by federal employees. The ADA regulations at 29 C.F.R. § 1630.1-1630.16 thus apply.
Plaintiff was injured in an accident in April 1993. She was able to return to work with minor restrictions on lifting objects, which a technical manual writer does not do often, and on knee rotation. Aside from the pain Plaintiff experienced in her shoulder and knee, the injuries did not significantly affect her work. With respect to work, the term "substantially limits" is defined as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." 29 C.F.R. § 16300)(3). Plaintiff was able to perform her duties, with minor restrictions. Moreover, even if she could not type for periods of longer than 4 hours, under the regulations, "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.
Beginning in November 1994, Plaintiff complained of shoulder dislocation and pain. She expressed difficulty getting dressed and other everyday-type activities. After proof from a doctor of the need for knee surgery, she was granted leave on May 26, 1995. She had shoulder surgery later that year in September. These surgeries suggest that Plaintiff's condition was not permanent and did not have long-term effects. The pain in her shoulder and knee was treatable and not a chronic condition. It did not limit a major life activity and did not rise to the level of a disability under the Act.
Plaintiff fails to qualify under the second and third elements for qualifying as having a disability as well. Plaintiff was in an accident and was injured; she does not have a history of a physical impairment limiting a major life activity as required in 29 C.F.R. § 1630.2(k) nor is she regarded as having such an impairment under section (1). Defendant continued to employ Plaintiff in her position of technical manual writer, even refusing to provide her with editorial or technical assistance when she asked for it. Moreover, Plaintiff did not produce evidence of attitudes of others toward her condition. This Court concludes that Plaintiff was not disabled under the Act.
Plaintiff argues that her Right to Sue Letter issued by the EEOC conclusively states that she has a disability. She is mistaken as to that document's weight. The Commission did state that "petitioner demonstrated that she has a physical impairment." Sanchez v. Caldera, MSPB No. CH-0432-97-0396-I-1, 2000 EEOPUB LEXIS 5971 (Aug. 31, 2000). It went on to conclude, however, that "petitioner's impairment does not rise to the level of a disability that substantially limits a major life activity. Further, there is no persuasive evidence that petitioner was regarded by management officials or co-workers as having nor had a record of a substantially limiting condition." Id. at *8. This Court agrees with the EEOC that the knee and shoulder injuries did not substantially impair a major life activity and do not entitle her to protection under the Act.
IV. MSPB Decision was not Arbitrary or Capricious or Abuse of Discretion
Plaintiff's final claim under attack in this motion is an appeal of the MSPB's decision rejecting her claims and finding in favor of Defendant. This Court's scope of review is limited. The decision must be upheld unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 7703(c). If the decision is supported by substantial evidence or "such relevant evidence as a reasonable mind might accept it as adequate to support a conclusion," it must be affirmed. Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed. Cir. 1990); Nagi v. United States, 751 F.2d 826, 828 (6th Cir. 1985) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217 (1938)).
Plaintiff asserts in her Amended Complaint that ALJ Miksa abused his discretion by failing to make detailed findings on Granbois' credibility, by failing to permit discovery on statistical information on minorities, by allegedly having ex parte communications with government counsel, by failing to grant a continuance, and by tricking Plaintiff into abandoning her race discrimination claim. The trouble with Plaintiff's complaint is that she merely disagrees with the outcome of her case and cannot demonstrate any abuse of discretion. She fails to produce any evidence, and a review of the administrative record reveals that ALJ Miksa's conclusions were supported by the facts.
Plaintiff's first contention is that ALJ Miksa failed to make detailed findings on credibility issues in her supervisor's testimony. Beyond accusing Granbois of being untrustworthy and a dysfunctional supervisor, Plaintiff presents no evidence of any shortcoming in the record. An administrative law judge's credibility determinations are "virtually unreviewable." Hambsch v. Dep't of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The report of ALJ Miksa's findings and conclusions, dated November 5, 1998, is exhaustive and detailed. There is no evidence that he abused his discretion when determining Granbois' credibility.
Plaintiff also alleges abuse of discretion in discovery and continuance requests. These decisions are again within the broad discretion of the administrative law judge, and Plaintiff provides no evidence of abuse. She appears to be merely unhappy with the result.
In her complaint, Plaintiff alleges misconduct by ALJ Miksa. She relies on a conversation in which ALJ Miksa referred to agency counsel by her first name, inferring that there must be ex parte communication and moving for his disqualification. This incident is not enough to raise an inference of misconduct or a question of fact for this Court to review.
In her Response to the Defendant's Motion, Plaintiff asserts further that the PIP standards were not objective and that she was not given an opportunity to improve her performance after review. The Court rejects these allegations. Plaintiff received poor evaluations of her work in November 1994. Granbois and Plaintiff had multiple meetings at which Plaintiff was made aware of the many errors in her work. The standards set out in the PIP were clear, with the milestone deadlines having been produced by Plaintiff herself. Both of the drafts of the EIR Digest that Plaintiff produced during her PIP period contained numerous errors. Plaintiff even failed to correct the errors after having them pointed out by her supervisor. She had ample opportunity to improve her work and she failed to do so.
The level of performance expected of Plaintiff was not too stringent. She developed the milestone deadlines for her program herself. She was allowed to turn in drafts of her work, with room for error, before entering a final draft. She was only required to produce 20-30 pages of text every three months. Given the short length of text, the amount of time, and the allowance for more errors on a draft, these standards are not unreasonable. ALJ Miksa did not abuse his discretion in upholding the standards to which Plaintiff was held.
Conclusion
For the foregoing reasons, the Court will grant Defendant's motion for summary judgment.
An Order consistent with this Opinion will be entered.