Valerie D. Stevenson,
Complainant,

v. 

Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.

Appeal No. 0120102636

 Hearing No. 531-2009-00063X

Agency No. HHS-NIH-0199-2008

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's May 21, 2010 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.  

BACKGROUND

On June 10, 2007, Complainant was hired as a Human Resources Specialist, GS-0201-09, at the Agency's Client Services Division (CSD), National Institutes of Health (NIH), in Rockville, Maryland, subject to a one-year probationary period.

On December 8, 2008, Complainant filed the instant formal complaint.  Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), disability (physical) and in reprisal for prior EEO activity when:  

1. on May 30, 2008, she was terminated during her probationary period; and

2. on April 4, 2008, her incentive award of $500.00 was cancelled and deducted from her paycheck.	

Following the hearing held on June 18, 2009, the AJ issued a decision on May 17, 2010, finding no discrimination.  The AJ found that based on the evidence of record, Complainant did not prove by a preponderance of the evidence that she was discriminated against because of her race, disability and prior protected activity.1  In so finding, the AJ found that management witnesses articulated legitimate, nondiscriminatory reasons for its actions taken which Complainant failed to establish by a preponderance of the evidence were pretextual.

Regarding Complainant's harassment claim, the AJ found that the evidence in the record did not establish that Complainant was subjected to harassment based on race, disability and retaliation.  Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment

Complainant's supervisor (S1) testified that when newly hired Human Resources Specialists begin employment, there is a list of various Human Resources related training sessions available for them.  For instance, S1 stated that there is one training session called "'Core Training' which includes classification and staffing.  There's also other training for HHS careers.  There is training in capital HR.  There is training on how to process personnel actions.  There . .  .was training on how to do conversions, how to do assignments, how to do promotions."  S1 stated that Complainant had taken all of the core training and "the only training that was left was on the job training which she was getting on a daily basis."  Specifically, S1 stated that Complainant worked directly with a named senior Human Resources Specialist (HR Specialist).  S1 stated that the HR Specialist's role was giving Complainant "day-to-day guidance and just working with her on the job."

S1 stated that in January 2008, she started receiving complaints about Complainant's work from the HR Specialist.  S1 stated that the HR Specialist "captured in a nutshell when she said, [Complainant] does not get it."  Specifically, S1 stated that the HR Specialist "elaborated that she had to repeat herself over and over again; that she had to into details about things she had already trained [Complainant] on; it was just to give her an assignment was to practically do it with her."  S1 stated that the HR Specialist eventually "decided to take up the lack of the work and do it herself."  S1 stated that she also received complaints from other employees and clients.  Specifically, S1 stated that other employees stated that "they were having a problem because [Complainant] was then asking them a lot of questions that they thought she should have already know how to do."   

Further, S1 testified that the National Institute of Alcoholic Abuse, Alcoholism (NIAAA) complained about Complainant's work.  Specifically, S1 stated that NIAAA stated that Complainant "was not providing correct information; that basically it was not the correct information.  And they had a problem with the way she delivered the information, the tone in which the information was delivered to them."  S1 stated that NIAAA felt that Complainant's tone was "harsh."  S1 further stated "I did mention to [Complainant] that I was getting complaints from people saying that she wasn't catching onto the job, and actually the conversation led into some other conversations.  But basically, yes, we did have the conversation about her ability to do the work."  S1 stated that at that point, Complainant told her that "she was doing fine.  So at that point I decided to just wait and see what the work products looked like themselves."  

S1 stated after Complainant expressed interest in additional training, she contacted her supervisor and told him "we were having problems with getting [Complainant's] work out correctly; we were having problems with the customers; they were not pleased with the work; and that it appears that she just doesn't like the work that she is doing."  S1 stated that her supervisor was in agreement with her.  The record reflects that an interview was arranged for Complainant with the head of the Training Center.  The record further reflects that although Complainant's interview went well, the head of the Training Center chose not to select Complainant for a position in training because she remembered Complainant from a previous meeting in which she witnessed Complainant being rude and argumentative.

S1 stated that during the relevant period, she changed Complainant's performance appraisal from fully successful to minimally satisfactory.  S1 stated that during their February 11, 2008 telephone conversation, she explained to Complainant that "I had gotten feedback and that her work was not up to par, and because of the workload - not because of the workload, but because of the way that her work was being performed that her final rating would be minimally satisfactory."  

S1 stated that Complainant continued to have performance issues following her appraisal.  S1 further stated that Complainant made a job offer to a named physician (P1) and set an effective date "however the paperwork was not completed in a timely manner in order for that effective date to take place for the promotion."  S1 also stated that Complainant's two recruitment packages to NIAAA were sent back "because of five or six different - - because of five or six different areas that were identified by [Complainant] that were incorrect or either the package was not complete."  S1 stated that Complainant's failure to classify position descriptions was "problematic.  If it was a new PD then of course we would need to classify it; if not, then it should have been in the PD book."  

S1 stated that on March 11, 2008, she met with Complainant to discuss her performance but Complainant "wouldn't even have a conversation with me, her supervisor, to try to figure out how we can fix this.  And if we can't work together as supervisor and employee then we are not going to be able to complete my mission."  S1 stated "at that point I decided that what really needed to be done was to remove [Complainant]."  S1 stated that prior to her decision to terminate Complainant during her probationary period, she asked a named Human Resource Specialist (HS) to give Complainant a NIDA assignment.  Specifically, S1 stated "there is always a chance that someone can pull through.  There is a chance that [Complainant] could do the work.  And so we are giving her an opportunity."  S1 stated that she later contacted HS to find out how Complainant's work was progressing and HS stated that Complainant "wasn't working at her level."

S1 testified that [Senior Human Resources Specialist (SHRS)] told her that Complainant wasn't catching on to the automated system; she doesn't understand how to work within the system; that he had worked with her, and it was his opinion that he would prefer that he do it rather than learning it herself...It was his opinion that we should not retain her because she was not going to get it."

Furthermore, S1 stated that she issued Complainant a removal letter dated May 29, 2008.  S1 stated that in the letter, she notified Complainant that she failed to carry out the duties of her position by failing to effectively manage, process, follow up on assigned cases such as [P1], the NIAAA matters and the NIDA matters.  S1 also notified Complainant that she placed an unfair burden on her co-workers.  Specifically, S1 stated that Complainant's co-workers "would have to pick up the slack that [Complainant] was leaving behind.  And also there were a lot of questions that she was asking of all of them."  Moreover, S1 stated that she did not discriminate against Complainant based on her race, disability and prior protected activity.

The HR Specialist testified that she had to refresh Complainant's memory with various duties such as recruitment actions, classification, WITS and Capital HR.  The HR Specialist further stated that each of Complainant's assignments "required assistance, so it wasn't as if she was a junior specialist and had that independence where she could just go out and complete the action, no."  The HR Specialist stated that before she was moved to a different branch, she prepared a review of Complainant's performance.  Specifically, the HR Specialist stated "my substance of the review was that I didn't think [Complainant] was - - I didn't think HR was cut out for [Complainant].  She had a problem retaining information."

SHRS testified that he made several suggestions to Complainant concerning a particular vacancy announcement and "then the third time I believe, if I recall correctly, I pretty much just went ahead and made the changes took my best shot at it and said, see if they will accept this."  SHRS further stated it was pretty clear that Complainant was having a difficult time grasping the vacancy announcement procedure and "I didn't really think she had a handle on it at all.  You really - - having been exposed to it through the formal class and by having looked at the handbook.  And she said that she had looked through that and developed the announcement, I expected a lot more.  And she should have at least been able to be familiar and move a little bit faster."  SHRS testified that he shared his concerns with S1.  Specifically, SHRS stated that he told S1 that Complainant "wasn't able to really grasp the basics of the HHS Careers, and she didn't really have a grasp of the basic concepts for the HAS crediting plans, which is very intuitive."

HS testified that she did not feel that Complainant was provided acceptable level of customer service.  For instance, HS stated that Complainant did not handle a named employee (E1)'s case well.  Specifically AO stated that she requested for E1's classified position description.  AO stated that on one occasion, she, S1, and [HR Specialist] met with Complainant to discuss [E1]'s position description (PD).  Specifically, AO stated that as a result of the meeting there was no result and "we had asked that the PD be classified, and again that someone just complete an evaluation to determine if [E1] would meet the qualifications for that position."  HS testified that "what ended up, [Complainant] contacted [E1] and requested information from her and then noted there would be a meeting and that EEO would be involved.  [E1] got extremely upset; said she didn't want EEO in any meeting; then [Complainant] sent another email back saying [Complainant] hadn't received the documents from [E1] and that if we didn't meet soon we couldn't meet until March.  I didn't know why.  So then based on this, and then the feedback from [E1], I emailed [S1], and I just said, this is spiraling out of control.  This is not what we agreed to at the meeting."

Regarding claim 2, S1 testified that in December 2007, she made a recommendation that Complainant should receive a $500 award for her performance.  S1 stated, however, stated that she had second thoughts concerning Complainant's award.  Specifically, S1 stated that she received information that Complainant "actually was not performing at a level at which I thought she was."  S1 stated that she shared her concerns with her supervisor and "he indeed explained to me that just because [Complainant] was fully successful, that I was giving her fully successful, did not mean that I would also have to give her an award."  The record reflects that on or about February 8, 2008, S1 withdrew Complainant's nomination for the award.

Further, S1 testified that she later learned that Complainant had received an award "when she came into my office and thanked me."  S1 acknowledged that she was shocked and asked her supervisor how Complainant received her award.  S1 stated that her supervisor told her that Complainant's award "probably gotten processed from the wrong spreadsheet."  S1 stated that she did not ask her supervisor to rescind the award because she felt that it would like reprisal action against Complainant.  Moreover, S1 stated that she learned that Complainant's award was rescinded "on the day I gave her the removal letter."  

On appeal, Complainant argues that the AJ erred in finding no discrimination because "there is no evidence that proves I failed to carry out the duties of a Human Resources Specialist in the areas of effective managing, organizing, processing and follow-up on assignments in a timely manner."

ANALYIS 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.  

Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above.  Therefore, 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, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. 

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

September 14, 2010
__________________
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1 For purposes of analysis only, and without so finding, the Commission presumes that Complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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