0120141544
08-03-2016
Kathlyn K.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kathlyn K.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120141544
Hearing No. 570-2014-00390X
Agency Nos. 10-53-00221/53-2010-0024
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 18, 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. For the reasons stated below, we AFFIRM the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that she was subjected to discrimination when she was removed from her position during her probationary period.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant was not subjected to discrimination when she was removed from her position during her probationary period.
BACKGROUND
Complainant is a former Accountant at the Agency's Annual and Benchmark Surveys Section, Direct Investment Division, Bureau of Economic Analysis (BEA) facility in Washington, D.C. Complainant was hired as an Accountant on August 3, 2009, pending a one year probationary period. Seven other accountants were also hired at approximately the same time. Two out of the seven accountants hired were African-American and one was female. The supervisor (S1) assigned the new accountants to the Lead Training Accountant (LTA) (Caucasian male). The LTA was not a supervisor but he conducted one-on-one training sessions and group training sessions for the new accountants. On August 10, 2009, Complainant informed her second-line supervisor (Caucasian female) (S2) that she needed 10 minutes in the morning and another 10 minutes in the afternoon to visit the lactation room to express breast milk. S2 did not tell S1 and LTA that Complainant would be taking this time until several weeks after she was told. LTA held many of the training sessions during the time Complainant was away from her desk or at lunch. LTA noted that Complainant was routinely late for training but did not discover the reason until later. During Complainant's second week on the job, the LTA informed her that she was not on par with the other new accountants. LTA reported this information to S1. S1 asked LTA to keep him informed about her progress.
Complainant emailed S1 for clarification regarding LTA's comments. She also offered to take training classes for any deficiencies that he deemed she may have. On September 30, 2009, LTA sent an email to S1 informing him that Complainant had not completed the edit checks for two affiliate survey forms that he had instructed her to perform. He also reported that Complainant had refused to comply with his request to contact a reporter and instead rationalized the numbers that were given on the form, which was contrary to proper accounting procedures for verifying data. Thereafter, LTA completed an audit of a folder that was assigned to Complainant. On September 30, 2009, S1 spoke with a Human Resources (HR) employee and informed him that Complainant was not performing as expected and would be given 60 days to improve her performance. He indicated that Complainant's 60 days would expire on October 13, 2009, and that the Agency intended to let her go if her performance did not dramatically improve. The HR employee told S1 that he would prepare the termination memorandum and that all he needed was an explanation of how Complainant's performance did not meet the standards that were articulated to her and/or when she was provided additional training/assistance.
On October 7, 2009, LTA noted that during a question and answer meeting that was focused on how to fix documents, Complainant asked questions related to when it was okay to leave documents with known errors, when missing data could be left missing and when she had to ask the reporter for the missing information. On or about October 9, 2009, S1 and the LTA met with Complainant to discuss the issues/deficiencies. Complainant was presented with two written audit reports pointing out errors she made in processing the 2008 BE-11 reports for two companies. S1 also pointed out a company's sales figure that Complainant should have questioned because it appeared too large. S1 told Complainant that her mistakes were unacceptable and that they needed to be corrected.
Complainant thereafter requested the opportunity to review all folders that she had completed for accuracy, and S1 agreed to her request. S1 instructed LTA to complete a second audit after Complainant had completed her review. On October 15, 2009, LTA gave S1 a folder that he received from Complainant on September 25, 2009. S1 inquired whether Complainant had questioned a company about a line regarding ownership. LTA reported that she had not because she did not get any errors from the system indicating that something was wrong. S1 told Complainant that not contacting the company was unacceptable and left the office. Complainant told LTA that she was never notified to contact the company but LTA indicated that he had instructed her to contact the company but perhaps he may have forgotten. LTA also reported to S1 that saw Complainant streaming a tennis match on her computer which may have been a violation of the Agency policy.
On October 15, 2009, S1 submitted the information to the HR employee to create the termination memorandum. On October 30, 2009, S1 terminated Complainant during her probationary period.
On February 26, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Brown) when, on October 30, 2009, she was terminated from her position of Accountant, ZA- 0510-UV01, during her probationary period.
Following an investigation by the Agency, Complainant requested a hearing before an Administrative Judge. However, the Administrative Judge granted the Agency's Motion for Summary Judgment and Complainant appealed the decision to the Commission. The Commission vacated the decision and remanded the case for a hearing. The Agency requested reconsideration but the request was denied.2 Thereafter, on December 18, and 19, 2013, a hearing was held. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that on October 30, 2009, S1 issued Complainant a termination notice informing her that her employment as an Accountant, ZA-0510-III/01 was terminated as a result of her failure to demonstrate fitness for continued employment. The AJ found that S1 cited multiple performance related deficiencies that occurred during Complainant's initial two months of employment as the reason for her termination.
The AJ then considered Complainant's pretext argument. Specifically, Complainant alleged that the Agency's articulated reasons were not credible. With regard to the first performance issue raised by LTA during the October 9, 2009, meeting with Complainant, Complainant testified that several of the changes in ownership percentages reflected on her BE-11 reports were done during the pre-editing phase by another accountant while she made another change following a conference call conducted in LTA's office on or about September 16, 2009. Complainant also testified that LTA did not ask her to contact a reporter to address ownership issues. Complainant alleged that 95% of the mistakes on the BE-11 were attributable to another accountant. With regard to the second performance issue, Complainant asserts that she did not contact the company to address any ownership issues because she did not get any errors from the system indicating that something was wrong.
Further, Complainant argued that she was not told about her grammatical mistakes. Complainant maintained that she was subjected to heightened scrutiny by management which included keeping logs regarding her activities; monitoring her cell phone and computer use; and requiring her to report her whereabouts if she was going to be away from her desk for longer than 10 minutes. Complainant further alleged that no other accountants were subjected to similar scrutiny.
The AJ found that Complainant did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The AJ found that Complainant acknowledged that she made mistakes that would be typical of a new employee and that while she maintained that another accountant made 95% of the mistakes on the BE-11 report, Complainant was still making mistakes. Further, Complainant explained that she did not contact the company list on a report because she did not get any errors from the system. The AJ found however that management credibly explained that Complainant should have been able to recognize that the numbers did not make sense on the form and call for clarification.
Further, the AJ found that even though the Agency did not provide examples of Complainant's written deficiencies, the AJ found the record contained multiple examples of Complainant's writing style which supported the Agency's argument. The AJ found that management's testimony was more credible and consistent than Complainant's testimony where she denied being told to correct work forms.
Next, the AJ found that no evidence was produced which proved that other accountants experienced similar performance problems during the initial 60 day period of their employment. Regarding alleged limitations placed on Complainant's cell phone and computer use, the AJ found that Complainant did not produced evidence that demonstrated that the Agency actually prevented her from using her cell phone and had only identified one instance involving her computer usage where LTA accused her of potential internet abuse when he observed her watching a tennis match on her work computer.
Accordingly, the AJ found that although Complainant disagreed with the Agency's decision to rely on the mistakes she made during the initial 60 day period of her employment to terminate her, he found that they were legitimate non-discriminatory reasons for her termination and Complainant did not demonstrate that the reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred in finding that she was not subjected to heightened scrutiny. Complainant also maintains that the AJ erred in accepting the Agency's contentions regarding her alleged grammatical problems when the Agency did not submit any supporting evidence. Complainant also contends that the AJ erred in concluding that 5% of the errors on the BE-11 form were her responsibility. Complainant asserts that there is no support for this conclusion. Moreover, Complainant contends that the AJ omitted from his decision a discussion regarding her pretext argument that once she requested time to pump breast milk, the Agency increased its scrutiny of her work. Complainant requests that the Agency's final order be reversed.
In response, the Agency, for the most part, requested that its final order be affirmed because it is fully supported by the record.
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).
We agree with the AJ that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as discussed above. We find substantial evidence in the record to support the AJ's determination that Complainant did not establish that the Agency's reasons were pretext for discrimination. We also find that Complainant has not submitted any persuasive evidence which shows that the AJ's credibility determinations should not be accepted. The Commission has long held that where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an Agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
Further, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements indicating that she disagrees with the AJ's finding of no discrimination she provided no evidence which indicates that her termination had anything to do with her race, color, and/or sex. We note, that Complainant argues that she received increased scrutiny after she revealed that she needed to take breaks to visit the lactation room. We find however, that the record shows that LTA was not initially aware that she was taking lactation room breaks. He testified that he noticed that she was late for several training sessions. By the time that LTA was told about the lactation breaks, the record indicates that he had already started keeping notes on Complainant's progress and was reporting his observations back to S1. The record does not establish that LTA's actions were based on Complainant's race, color, and/or sex. The record supports the AJ's determination that it was Complainant's inability to perform at the level that LTA deemed acceptable that was the cause of her termination. We further find that no evidence has been produced which shows that the other new accountants, not of her race, color or sex, were subjected to an easier standard of performance than Complainant. The record indicates that the other accountants, including those who were black and women were trained and retained during the relevant time period. Therefore, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order which found that Complainant did not demonstrate that she subjected to discrimination when she was terminated during her probationary period.
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
__8/3/16________________
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 See EEOC Appeal No. 0120122037 (February 6, 2013), and EEOC Request No. 0520130321 (October 22, 2013).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141544
2
0120141544