Olga Hernandez v. Penny Pritzker
741 F.3d 129
D.C. Cir.2013Background
- Olga Hernandez, a Hispanic engineer, was hired by the Bureau of Industry and Security (BIS) in May 2006 with an SF-50 indicating a career appointment; the form did not initially reference a probationary period.
- Hernandez worked in the Nuclear and Missile Technology Division (NMTD); supervisors and colleagues expressed concerns about her performance and confusion about responsibilities.
- In December 2006 Hernandez filed an informal harassment complaint and in February 2007 filed a formal EEO complaint alleging harassment and later alleged retaliation when she was moved and terminated.
- In January 2007 Hernandez was detailed to the Chemical and Biological Controls Division (CBCD); she contends the move was retaliatory and unsuitable to her background.
- In April 2007 the Department corrected Hernandez’s SF-50 to reflect probationary status (citing OPM rules about crediting prior service) and subsequently terminated her during probation for unsatisfactory performance (numerous processing errors).
- Hernandez sued under Title VII for retaliation (detail, change to probationary status, and termination); the district court granted summary judgment for the Department and the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Detail to CBCD was retaliatory | Hernandez says she was forced to accept an unsuitable detail to escape a hostile work environment and that other BIS vacancies existed | BIS: Hernandez requested transfer; detail accommodated her request | Court: No pretext — Hernandez requested transfer, produced no admissible evidence of available preferred vacancies; judgment for BIS |
| Change to probationary status was retaliatory | Hernandez contends she already completed probation previously and should not have been placed on probation | BIS: SF-50 correction remedied a clerical/administrative error; appointment was from a competitive list so probation applied | Court: Change was lawful correction under OPM rules; Hernandez failed to rebut non-retaliatory reason; treat as irrelevant evidence of retaliation |
| Termination was retaliatory | Hernandez asserts termination followed her EEO complaints and was motivated by retaliation | BIS: Termination based on failure to demonstrate acceptable performance during probation (documented errors, supervisory concerns) | Court: No evidence of pretext; undisputed poor performance supports termination; judgment for BIS |
| Administrative exhaustion of probation claim | Hernandez argues probation claim relates to termination so should be considered | BIS: Probation change was not raised administratively; exhaustion required | Court: Assumed probation change could be considered as evidence of termination but held it does not undermine BIS’s non-retaliatory explanation |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for indirect-evidence discrimination/retaliation)
- Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) (simplification of McDonnell Douglas burden-shifting)
- Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009) (retaliation analysis under McDonnell Douglas)
- McGrath v. Clinton, 666 F.3d 1377 (D.C. Cir. 2012) (central question whether plaintiff produced evidence that employer’s reason was pretext)
- Taylor v. Solis, 571 F.3d 1313 (D.C. Cir. 2009) (summary judgment and alternative grounds of decision)
- Kleiman v. Dep’t of Energy, 956 F.2d 335 (D.C. Cir. 1992) (affirming on alternative grounds)
- Weber v. Battista, 494 F.3d 179 (D.C. Cir. 2007) (exhaustion and related-claim doctrine)
- Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007) (scope of administrative exhaustion)
- Pervez v. Dep’t of the Navy, 193 F.3d 1371 (Fed. Cir. 1999) (OPM coding and appointment classification)
- United States v. Garrett, 720 F.2d 705 (D.C. Cir. 1983) (affirmance on correct legal grounds)