0120142588
08-23-2016
Janita H.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janita H.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120142588
Hearing No. 570-2011-00217X
Agency No. 2010-0043-HQ
DECISION
On July 8, 2014, Complainant timely filed an appeal from the Agency's June 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Director, Health Research and Fellowship Division (HRFD) in the National Center for Environmental Research (NCER) in Washington, DC. She was a GS-15.
On March 12, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (White) when she was terminated effective November 6, 2009, during her probationary period.
Following an investigation, and hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ), the AJ found no discrimination. The Agency's final order adopted the AJ's decision.
On October 21, 2009, Complainant's first line supervisor (S1), the Director of NCER (Black), a Senior Executive Service manager, gave Complainant a letter notifying her of her termination effective November 6, 2009. S1 charged that Complainant did not demonstrate that she was suited to perform the supervisory duties of Director of HRFD - she failed to exercise good judgment managing staff, setting priorities, executing division assignments, and maintaining a harmonious work environment.
Prior to hiring Complainant, S1 knew Complainant was White. In her decision, the AJ found the following. S1 hired Complainant despite the concerns of his supervisor, and a review panel rating her as unqualified (not a Human Resources qualification determination). Shortly after Complainant was hired in March 2009, complaints were made about her demeanor and performance. This prompted S1 to detail Complainant to the position of Acting NCER Chief of Staff in June 2009, a non-supervisory position. After the Chief of Staff position was filled, S1 returned Complainant to Director of HRFD in September 2009. Shortly thereafter, S1, the NCER Deputy Director (White), and the Chief of Staff (Asian) received numerous complaints about Complainant. As a result, S1 removed Complainant. At the hearing, Complainant identified Co-worker 1 (African-American) as her comparator. He was the Director of the Research Support Division in NCER, GS-15. He performed this duty, along with Acting Director of HRFD, while Complainant was detailed.
The AJ continued as follows. Prior to Complainant's arrival, HRFD staff was accustomed to "doing what they wanted" regarding time and attendance, including not signing timesheets, patently refusing to sign their flexiplace agreements, and not calling when they were going to be absent. Further, HRFD had budgetary, workload and personnel problems - e.g., employees were not accustomed to receiving evaluations (meaning sitting in on evaluation meetings). When Complainant discussed these problems with S1, he advised her to be patient and get to know staff before taking action. But Complainant failed to heed this advice, resulting in an outcry from staff. After a highly skilled employee quit, S1 reassessed his decision to hire Complainant to prevent loss of more staff. Hearing Transcript (H.T.) 467, 691. Complainant's efforts, although well intentioned, led to complaints resulting in her termination.
The AJ found that Complainant did not establish a prima facie case of discrimination because she was not similarly situated to Co-worker 1. Specifically, Co-worker 1 was not a probationary employee, was leading his own Division as well as Complainant's, and received cooperation from employees by the way he communicated with them.
The AJ found that assuming arguendo that Complainant made out a prima facie case of discrimination, the Agency articulated legitimate non-discriminatory reasons for terminating Complainant, as recounted above, and the record was devoid of evidence demonstrating that the Agency's action was based on racial animus.
On appeal, Complainant argues that she faced an insubordinate and difficult staff, that S1 prevented her from taking action but did not tie Co-worker 1's hands, that witness testimony about complaints against her was incredible and inconsistent, and she was not informed of the complaints.
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, at � VI.B. (Aug. 5, 2015).
Complainant's team was largely made up of scientists. Relaying what S1 stated, the Chief of Staff wrote that staff often worked late into the night and were on their Blackberries at night, on weekends, and even vacations. She wrote that she received complaints from Complainant's staff about her leadership style, and they felt she did not trust them regarding time and attendance and flexiplace. According to the Chief of Staff, a number of Complainant's staff informed her that Complainant would leave notes, voicemails, and emails if they were not at their desks, and expressed resentment that they had to account for their whereabouts as though they were children. The Chief of Staff stated that a probationary employee, who felt vulnerable, complained to her that Complainant asked him to work through two consecutive weekends on a request from S1. According to the Chief of Staff, the staffer said he already bought tickets to go on a trip the second weekend, and was visibly upset. She stated that while the assignment was of interest to S1, she was confident it was not a priority and S1 would not have requested the employee to work overtime or on the weekend - hence it was Complainant's request. The Chief of Staff advised the staffer to talk to Complainant, which he indicated he would do.
S1 stated that he advised Complainant that a huge problem she had with her staff was continuously micromanaging her project officers, senior people who had been there much longer, knew the program much better than she did, and yet she would impose her will on science matters on which she did not have much experience. He advised her to listen to her staff and give them credibility. H.T. 545 - 546. S1 gave an example - one of Complainant's subordinates (Black), a team leader, one of the best people in the organization, really knew her stuff, and did not like to be micromanaged, but Complainant wanted to be involved in all levels of conversations the team leader was having with her staff, which the team leader thought was inappropriate. H.T. 629.
One of Complainant's subordinates (Asian) testified that he heard complaints that in implementing a particular want which did not rise to the level of a directive, Complainant would ask staffers to process paperwork to fund applications in a way that was rushed and seemed to disregard appropriate business processes. H.T. 205 - 206. Another subordinate (White) testified that she observed Complainant being condescending, and sometimes would ask for things in a way that upset people. This subordinate gave an example - she was told by Complainant to look in her eye when talking to her, and Complainant then said she could not believe she said this since she does look Complainant in the eye. The subordinate found this to be inappropriate. H.T. 251, 264. This subordinate said she complained to S1 and the Deputy Director of NCER about Complainant.
Co-worker 1 stated that the majority of people on Complainant's staff were very professional and conducted themselves with integrity, but he had to admonish two staffers about time and attendance. H.T. 141, Report of Investigation (ROI), at 153. He stated that he told individuals in HRFD that he expected professional courtesy, cited Agency policy, and if they choose not to comply he would take it to the next level. ROI, at 154. He tried to create an environment where people felt respected. ROI, at 155. The White subordinate above testified that there were not problems during Co-worker 1's tenure - he was business like, not a micro-manger, and people felt comfortable doing their jobs with him leading. H.T. 255 - 266.
Complainant asserted that Co-worker 1 was advantaged because he had S1's support to take action, as necessary, but her hands were tied - S1told her not to take action until she got to know her staff better. The AJ's finding that Co-worker 1 received more cooperation from employees by the way he communicated with them is supported by substantial evidence - he did not communicate in a way that set off staff.
The AJ's finding of no discrimination is supported by substantial evidence. Further, the fact that S1 hired Complainant knowing she was White points against finding that S1was motivated by racial bias when he terminated her. Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002).
The Agency's final order 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 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
August 23, 2016
__________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142588
2
0120142588