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 28 of 34

was precipitated by a crisis having nothing to do with Jenkins. Second, Barnes had legitimate reasons to want to prevent Scarberry and Jenkins from working together. He described their relationship as "dysfunctional" and "impeding the flow of work in the division" (TR 1731-32). It is reasonable that he would not want to recreate that situation by again placing Jenkins under Scarberry's authority. While the circumstances under which Jenkins was performing listing work may have been unique, for she was the only one in her branch doing listings, Jenkins' situation was unique because of the difficult relationship that had developed between her and Scarberry. Accordingly, I find that the failure to transfer Jenkins to the branch performing listings work and any resulting isolation was not discriminatory.

c. Imposition of IDP

Complainant next contends that the imposition of an Individual Development Plan (IDP) from November 1987 to June 1988 was an adverse action. First, the record indicates that Jenkins was only subject to an IDP from December 2, 1987 to January 31, 1988 (CX 72). Second, EPA policy required that Jenkins be placed on the IDP after an unsatisfactory performance evaluation (id). As discussed above, I found that the unsatisfactory performance evaluation was based on Jenkins' work-related performance problems, not retaliation for protected activity. Therefore, placing her on an IDP was not only justified because of her performance problems, but required by EPA policy. Because the goal of an IDP is to give the employee the opportunity to demonstrate her fitness for government service, it should not be viewed as an adverse action. However, even assuming that it was an adverse action, placing her on the IDP was clearly not motivated by discriminatory reasons, but rather by her performance problems and EPA policy. Accordingly, I find that Jenkins has failed to establish that placing her on the IDP was based on her participation in protected activities.

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d. FY 1988 Performance Rating

The December 1988 performance rating of "fully successful" rather than "exceeds expectations" is the next alleged adverse action.13 Scarberry testified that while he viewed Jenkins' performance as unsatisfactory in the beginning of the year, he thought her work had improved as the year progressed (TR 1868). He stated that he believed her work became minimally satisfactory during the time period in which he was her supervisor, which was from October 1987 to June 1988 (TR 1869). Dellinger testified that he rated Jenkins as "exceeds expectations" for the time period in which he supervised her, June 1988 to September 30, 1988. Therefore, averaging the two evaluations, Jenkins was given a "fully successful" rating for this time period. Jenkins has not shown how a "fully successful" rating in this situation is an adverse action or why she would have been entitled to a higher rating.

e. Period of No Duties and Isolation 1988 - 1989

Complainant's next asserted adverse action is that from 1988 to 1989 she was subjected to a "period of no duties and isolation" (Compl. brief at 177). The record does not support this contention, but instead shows that complainant was given appropriate job duties during this period. Jenkins did testify that from June to August of 1988 she did not meet regularly with her supervisor to discuss her work. However, her supervisor at this time, Dellinger, testified that he was responsible for handling an unexpected medical waste crisis during this time period (TR 1803). Dellinger explained that Jenkins was responsible for working on "at least two hazardous waste" listings during 1988 (TR 1807-08). Jenkins testified that she also worked on a solvents exemptions project in 1988 (TR 1261).

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

NYC-WTC 000125965