DOH/DEP asbestos fact sheet draft, 105 Duane Street

NYC 9/11 Public Portal Document

Jenkins v. U.S. Environmental Protection Agency, 88-SWD-2 (ALJ July 10, 1998) Page 26 of 34

have expressed to you on several occasions over the past two years, both orally and in writing, my concern over the quality and timeliness of your assignments. As a result, an abnormal amount of my time has been used in providing detailed instructions as well as rewriting/editing your technical assignments. After these discussions, guidance, and recommendations, there has been no demonstrable improvement in your work performance.

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CX 65 at 1. The record supports Scarberry's statements in this memo. Both Jenkins and Scarberry testified that they had numerous meetings over Jenkins' work. Numerous drafts prepared by Jenkins have extensive comments written on them. While these comments by themselves are not necessarily probative as to the quality of Jenkins' work, the fact that almost all Jenkins' drafts required extensive re-writes is probative. Jenkins is a high-level professional and her work should not have needed the close supervision that it did. Furthermore, Scarberry's statement that Jenkins consistently missed deadlines is also supported by the record.

Jenkins's difficulty in meeting deadlines and communicating effectively with her supervisors is demonstrated by her December 1, 1986 memo stating that she would re-draft a document and turn it in to her supervisors in "two weeks or so" (CX 13). However, Jenkins did not turn in this draft until early February (TR 1846) (see supra pages 25-26). Jenkins' refusal to address certain issues in the options paper was another legitimate performance related problem.

Thus from September to November 1987, the record is replete with performance related concerns from her supervisors before, during, and after she engaged in protected activity. If anything, the record reflects that Jenkins' supervisors were extraordinarily generous in providing her many opportunities to improve her work; when no improvement was seen, these adverse actions followed. Therefore, I find that complainant's removal from the wood preserving paper and project, denial of salary increase, and unsatisfactory performance evaluation were not acts of discrimination based on protected activities, but rather actions taken because of Jenkins' poor work performance.

Finally, that Jenkins ultimately was granted a within grade salary increase and given a satisfactory performance evaluation by Lowrance was not an adverse action. Lowrance credibly testified that she did this because she was leaving her position and she wanted the issue put aside so that the slate would be clean for her replacement. Though Jenkins contends that not raising her evaluation to "exceeds expectations" is an adverse action, I disagree. Jenkins' supervisors had legitimate, well- documented performance problems with complainant's work, such that her performance did not deserve even a "fully satisfactory" rating, let alone an "exceeds expectations" evaluation. In fact, the decision by Lowrance to grant Jenkins a salary increase and raise her performance evaluation was made in an effort to put the issue to rest so that the office would be more harmonious and better able to perform its work, rather than an effort to commend Jenkins for her work performance.

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4. Merits of 1988-1989 Allegations

Complainant next contends that during 1988 and 1989 she was subject to the following adverse actions:

6/10/88: Reassignment to report to branch chief, removal of Listing Section to another branch

file://A:\Dismissed.html 12/21/01

NYC-WTC 000125963