Alyce R.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

May 20, 2016

0120141808 (E.E.O.C. May. 20, 2016)

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

Alyce R.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120141808

Hearing No. 520-2012-00092X

Agency No. FBI-2011-00016

DECISION

Complainant filed an appeal from the Agency’s May 5, 2014, final order concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq., and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Language
Specialist, GS-12, at the Agency’s work facility in Albany, New York.

On December 6, 2010, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her religion (Jewish), age (62), sex (female),
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.

0120141808

2
disability (physical), and in reprisal for her prior EEO activity when she was disparately
treated and harassed by her immediate supervisor from 2009 through December 6, 2010, to
include but not limited to, the following incidents: 2

1. Unfairly scrutinized her work product; micromanaged and examined her; regularly
checked her employee badge admissions to verify her entry and exit times; accused
and suspected her of lying all the time; reprimanded her for leaving her computer
unattended; and denied her additional training in language skills.

2. On November 9, 2009, Complainant was placed on a Performance Improvement
Plan (PIP); and as a result of failing to maintain a “Minimally Successful” level of
performance for one year, she received a Performance Appraisal Report (PAR) with
an overall rating of “Unacceptable” on October 25, 2010.

3. On September 2, 2010, Complainant was issued a “Letter of Requirement” for
future use of sick and/or annual leave.

4. On November 3, 2010, Complainant received a Notice of Removal.

5. On November 10, 2010, Complainant’s PAR appeal request was denied.

6. By letter dated January 10, 2011, Complainant was terminated from employment
with the Agency.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on March 20, 2014.

The AJ found that no discrimination occurred. The record reflects that Complainant received a
contract position with the Agency as a Hebrew and Yiddish Language Specialist in July 2003.
The AJ stated that Complainant’s duties entailed providing translations and interpreting support
to special agents for investigations. The AJ noted that the Supervisor, who had recruited
Complainant to apply for her position, became her supervisor in 2007. According to the AJ,
the Supervisor counseled Complainant soon after his arrival regarding how to manage her
work assignments. The Supervisor reported that he had received complaints from other
managers about Complainant’s time and attendance and complaints about her unprofessional
conduct and unacceptable behavior toward other linguists.

2 Complainant withdrew the bases of sex, disability, and reprisal in her Response to the
Agency’s Motion for Summary Judgment.

0120141808

3
The AJ observed that Agency policy mandates that all language specialists participate in quality
control reviews on a quarterly basis. The Supervisor did not conduct these reviews as they
were performed anonymously, independently and were controlled by Agency Headquarters.
The AJ stated that if a language specialist received a “Not Satisfactory” quality control review,
developmental recommendations and training were given. A lack of improvement within 60
days generally led to a warning PAR and continued deficient performance would result in an
“Unacceptable” PAR. Complainant received a “Not Satisfactory” quality control review on
June 30, 2008. Complainant challenged this review but a second review also resulted in a
“Not Satisfactory” rating.

The AJ noted that beginning in 2008, the Supervisor documented deficiencies in Complainant’s
time and attendance. The Supervisor determined that Complainant was frequently late to
work, took extended lunch breaks and left the office before the conclusion of the work day.
Consequently, the Supervisor required that Complainant and the other linguists e-mail him
upon their arrival and departure. Complainant rejected a subsequent offer from her Supervisor
for flex time or an alternative work schedule. On January 6, 2009, Complainant received
another “Not Satisfactory” quality control review. On April 24, 2009, Complainant received a
“Minimally Successful” interim PAR. On April 27, 2009, Complainant was issued an
additional “Not Satisfactory” quality control review. Complainant retook the Hebrew Foreign
Language Test Battery and her score on the test revealed that she only met the minimum
requirements for a Language Monitor position, a level below that of a Language Specialist.

On November 9, 2009, Complainant was placed on a PIP. Pursuant to the PIP, Complainant
was assigned special training from an experienced linguist and to work on improving two
critical elements: relating with others and communicating orally and in writing. The
instructor assigned to assist Complainant determined that she had below average skills and thus
frequently reported information inaccurately. The instructor further determined that
Complainant was working below her position level and was unwilling to improve her
performance. Nevertheless, on February 8, 2010, Complainant was informed that she had
successfully completed the 90-day PIP and her performance was “Minimally Successful.” The
AJ noted that pursuant to Agency policy, during the one year period after the completion of the
PIP, the employee must maintain at least a “Minimally Successful” level of performance or
face removal, demotion, or reassignment.

The AJ observed that in February 2010, Complainant’s daughter was diagnosed with papillary
thyroid cancer. The Supervisor praised Complainant on her improvement at her reviews in
March and April 2010; however, the AJ noted that two months later, Complainant’s
performance began to suffer. Complainant received a “Not Satisfactory” quality control
review in which the reviewer stated that some of Complainant’s additions to the text could
have a catastrophic effect on the investigation. Additionally, Complainant was reprimanded by
the Supervisor for failing to adhere to security procedures when she left her computer unlocked
and unattended, continued to have time and attendance difficulties and was noticed sleeping at
her desk while at work. The Supervisor also concluded that Complainant’s productivity and
performance were below average in comparison with her coworkers.

0120141808

4

The AJ stated that on the morning of August 27, 2010, Complainant contacted her Supervisor
and informed him that she would be using annual leave that day. The AJ noted that
Complainant had previously taken leave without prior approval. The Supervisor issued
Complainant a Letter of Requirement reminding her that Agency annual leave policies require
at least 24 hours notice. On September 27, 2010, the Supervisor requested that Complainant
be removed. On September 30, 2010, Complainant received another “Not Satisfactory”
quality control review. On October 22, 2010, Complainant was issued a PAR indicating an
“Unacceptable” performance. The Albany Division and Agency Headquarters approved the
requested removal and Complainant received a Notice of Proposed Removal on October 26,
2010. Complainant’s removal became effective on January 10, 2011.

The AJ found that assuming arguendo, Complainant could establish a prima facie case of
discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ stated that Complainant was terminated due to her poor performance. The AJ noted
that her work was repeatedly regarded as “Unacceptable.” Further, Complainant’s time and
attendance did not comply with Agency procedures. The AJ observed that Complainant failed
to maintain the minimally successful performance standards during the one year period after
completing her PIP.

The AJ found that Complainant failed to present evidence to show that the Agency’s articulated
reasons are pretextual. As for Complainant’s claim of harassment, the AJ found that the
actions at issue were not sufficiently severe or pervasive to constitute harassment. The AJ
stated that the comments at issue were infrequent, somewhat vague and of a generalized
nature. The AJ rejected Complainant’s claim that the Supervisor’s micromanagement of her
constituted a severe and pervasive alteration to the conditions of her employment. The AJ
observed that the Supervisor monitored Complainant’s time and attendance because she was
late and her termination was attributable to her repeated poor performance on reviews.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her Supervisor micromanaged her, but not others.
Complainant maintains that the Supervisor and his assistant kept a constant watch on her and
that the Supervisor always said something negative to her. According to Complainant, her
Supervisor excluded her socially and asked others not to seek her advice. Complainant states
that visiting linguists would be introduced to all of the linguists except her and her Supervisor
did not inform her that that she had the opportunity to train on new software they would be
using.

Complainant states that after completion of her PIP in April 2010, her Supervisor issued her a
Mid-Year Progress Review praising her for her performance of the critical elements from the

0120141808

5
PIP. Complainant notes that the Mid-Year Progress Review stated that she was on a path to
demonstrating sustainable improvement with the quality of her translation products and that she
is distinguished from her colleagues by her extraordinary linguistic ability in the Hebrew and
Yiddish languages. Complainant states that the quality of her work relied upon by the
Supervisor to have her terminated coincided with a period where she experienced tremendous
stress and anxiety due to her daughter’s thyroid cancer. Complainant acknowledges that the
quality of her work may have slipped temporarily.

Complainant states that in the Albany Office, she was older than most of the other linguists and
she was also the only Jewish linguist. Complainant maintains that her Supervisor was biased
against older translators and Jewish women. According to Complainant, the Supervisor told
the EEO Counselor that he believed she had lost her ability to translate at an acceptable level
as a result of her age, and therefore training would not be effective for her. Complainant
claims that on two occasions, her Supervisor compared her to a Jewish Hebrew translator
working in the Washington, D.C. Office. Complainant states that the Supervisor said to her,
in an angry manner, “You are all alike. You pretend you don’t know what the rules are.”
Complainant maintains that this remark reveals that her Supervisor generalized about Jews in a
negative way.

Complainant argues that even though she tested at the lower Language Monitor level, she was
still able to perform the work she was provided. Complainant denies that she was asleep in her
office, but rather claims that she closed her eyes so she could concentrate on her monitoring
tasks. Complainant states that the alleged security breach mischaracterized what occurred.
Complainant states that when she left her desk without locking her computer, she was at the
copier, only two steps from her desk. Complainant denies that she mistreated an Agency
special agent. According to Complainant, she did not know the special agent was waiting for
her, that she was on the telephone for only five minutes, and that she got off the telephone
when she noticed him.

In response, the Agency asserts that Complainant has not shown that it extended preferential
treatment to other linguists outside of her protected classes who performed in a similarly
deficient manner. The Agency states that Complainant exhibited pervasive and persistent
performance deficiencies throughout her service under the Supervisor. The Agency notes that
the Supervisor repeatedly counseled Complainant concerning her time and attendance. The
Agency maintains that Complainant frequently arrived at work after her scheduled arrival time,
took longer lunches than she was allowed, had lower productivity rates for her translations in
comparison to other linguists and received “Not Satisfactory” quality control reviews.

The Agency asserts that Complainant has attempted to alter her prior testimony. The Agency
points out with regard to the aforementioned Jewish translator in Washington, D.C., that
Complainant told the EEO Counselor that her Supervisor stated, “You and her are both the
same. You pretend that you don’t know what the policy is.” The Agency states that
Complainant is now claiming that the Supervisor stated, “You are all alike,” in an effort to
portray her Supervisor as an anti-Semite. The Agency notes that the evidence establishes that

0120141808

6
her performance deteriorated to the point where, in 2009, it was forced to place her on a PIP,
and, in 2010, to remove her.

With respect to Complainant’s reference to the statement allegedly uttered by her Supervisor to
the EEO Counselor, the Agency states that the EEO Counselor reported that the Supervisor
stated it is common among linguists for performance to drop as they get older. The Agency
claims that Complainant distorted the remark so that the Supervisor allegedly stated that
Complainant had lost her ability to translate as a result of her age, and training would not be
effective for her.

The Agency notes that Complainant focuses on a “Satisfactory” quality control review that she
received in September 2010, but that she ignores the numerous negative quality control reviews
she received that resulted in the PIP, and that led to her failure during the jeopardy period.
The Agency states that from March 11, 2010 through August 24, 2010, Complainant processed
only about half the amount of audio as other Hebrew linguists nationwide. With regard to
Complainant falling asleep in her office, the Agency asserts that Complainant’s physician
stated there are days that she falls asleep at her desk and that several employees witnessed her
sleeping at her desk. As for the incident where Complainant was on the telephone while a
special agent was waiting to talk to her, the Agency states that the special agent and the
Supervisor both believed Complainant’s behavior was rude and disrespectful.

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.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

0120141808

7

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that she established a prima facie case of discrimination under the alleged bases, Complainant
failed to present evidence to rebut the Agency's legitimate, non-discriminatory reasons for its
actions.

The Agency explained that Complainant was placed on a PIP and subsequently removed from
employment due to performance deficiencies and issues related to her conduct, time and
attendance. According to the Agency, Complainant demonstrated performance difficulties as
exemplified by numerous “Not Successful” ratings on her quality control reviews and lesser
productivity in comparison with other translators. The Agency also pointed to Complainant’s
frequent late arrivals at work, extended lunch breaks, disrespectful conduct toward a special
agent, and her falling asleep occasionally at her desk. We find that the Agency has articulated
legitimate, nondiscriminatory reasons for the actions it took against Complainant.

Complainant attempts to establish pretext by focusing on her Supervisor’s alleged negative
perception of the ability of older translators. Complainant references a remark allegedly
uttered by her Supervisor to the EEO Counselor that indicates he believes translators’ skills
deteriorate as they grow older. As a generalized notion, it is disturbing that the Supervisor
would have such a mindset. However, this comment by itself is not sufficient to establish that
the Supervisor pursued Complainant’s termination and the actions preceding the termination
based on discriminatory motivation. Complainant acknowledges that her work diminished in
quality for at least a short period of time. The record indicates that her difficulties were more
prolonged than a short period of time given her significant number of “Not Satisfactory”
quality control reviews. Complainant’s productivity was also deficient in comparison with
most other Agency Language Specialists. In light of such inadequate job performance and
concerns about Complainant’s time and attendance and her falling asleep at her desk, we are
not persuaded that age was a factor in any of the Agency’s actions toward Complainant,
including her termination.

With respect to Complainant’s claim of religious discrimination, Complainant seeks to portray
her Supervisor as an anti-Semite based on her assertion that he said “You are all alike. You
pretend you don’t know what the rules are.” Complainant states that the comment referred to
both her and a Jewish Language Specialist in the Washington, D.C. office. We find that this
remark could clearly be construed in ways that do not reference Jewish heritage.
Complainant’s interpretation lacks sufficient evidence to support it. We find no persuasive
argument or evidence to support Complainant’s claim of religion discrimination as to her
termination or any of the actions preceding it.

With regard to Complainant’s claim of harassment, we find that the alleged actions were not
sufficiently severe or pervasive to constitute a hostile work environment. Further, we discern
no persuasive evidence that any of the alleged actions were pursued against Complainant based
on her religion or age.

0120141808

8
CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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

0120141808

9
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

May 20, 2016
Date