0120055825
03-15-2007
Barbara B. Johnston, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Barbara B. Johnston,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200558251
Hearing No. 160-2005-00210X
Agency No. 050818
DECISION
Complainant filed an appeal with this Commission from the July 29, 2005
agency decision which implemented the decision of the EEOC Administrative
Judge (AJ) finding no discrimination.
Complainant, an Account Technician at the U.S. Coast Guard Exchange
System, alleged that the agency discriminated against her based on sex
(female), age (64), and in reprisal for prior EEO activity when she was
subjected to harassment and terminated on March 24, 2003.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an AJ. Complainant timely requested a hearing.
The AJ issued a decision without a hearing (summary judgment) on June
10, 2005.
In her decision, the AJ concluded that complainant failed to establish
a prima facie case of discrimination on any basis. In so concluding,
the AJ noted that although complainant was a member of protected groups
with respect to sex and age, she failed to identify any similarly
situated individuals outside of her protected groups who were treated
more favorably than she was. Regarding reprisal, the AJ determined that,
the protected activity, complainant's February 5, 2003 letter to agency
management alleging harassment, was written in response to the agency's
February 4, 2003 letter to her giving her a final warning with regard to
her poor work performance. The AJ found that even if complainant had
established a prima facie case of reprisal, the agency had articulated
legitimate, nondiscriminatory reasons for its actions and that complainant
had not shown that the agency's reasons were pretextual. The AJ noted
that the path towards complainant's termination was well documented and
began long before the protected activity. The AJ also concluded that
even if complainant had established a prima facie case of discrimination
regarding her termination, the agency had articulated a legitimate,
nondiscriminatory reason for its action, i.e. complainant was unwilling
or unable to perform her work at the expected level. The AJ concluded
further that complainant had not presented evidence to show that the
actions complained of rose to the level of actionable harassment.
The Commission's regulations allow an AJ to issue a decision without a
hearing when there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
Upon review, the Commission finds that the AJ's grant of summary judgment
was appropriate as no genuine issue of material fact exists. The AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Assuming without deciding
that complainant established a prima facie case on each basis, the record
reveals that the agency has articulated legitimate, nondiscriminatory
reasons for its actions and complainant has failed to show that the
agency's explanations were mere pretext to hide unlawful discrimination.
Complainant has also not shown that she was subjected to a hostile
work environment. Other than mere assertions, complainant has failed
to provide any persuasive evidence or arguments demonstrating that the
agency acted with discriminatory animus.
The record reveals that complainant was terminated because of poor work
performance. The record also reveals that complainant was sent several
discussion sheets which discussed her performance prior to her termination
and that despite training and guidance provided by the agency so that
complainant could improve her performance, complainant could not perform.
The record reveals that complainant received daily one-on-one training
throughout her employment, that she was provided with a training plan,
and that management provided different approaches to train complainant.
The record also reveals that complainant made a number of mathematical
errors in her work. Regarding reprisal, the record indicates that
complainant was terminated about a month following her allegation of
harassment. The record reveals that the reasons for her termination were
spelled out and documented for months prior.
Regarding the alleged harassment, complainant alleged that: she was not
provided with written procedures; there were improper personnel practices;
she was not given access to a user name; packages from "rooftops"
2 were not being delivered timely; that her job description changed on
a weekly basis; her supervisor did not give her enough time to respond
to her work evaluation; her supervisor made false statements; she was
told not to process credit cards or print out reports; no assistance
was given to her; and she was terminated without notice or benefits.
Other than her unsupported assertions regarding the alleged incidents
of harassment, complainant has failed to show, even if the incidents
complained of were accepted as true, that she was subjected to these
alleged incidents for prohibited reasons.3
The record establishes that complainant was sent a letter of warning
in February 2003 because of poor performance. Regarding "rooftops" not
being submitted timely, the evidence shows that documents were sent by
facsimile so that employees could continue to complete their work and,
also, that complainant was taught other options to expedite the process.
The evidence also shows that new employees were not immediately given
a user name. Complainant has not shown that she asked for assistance
at work and her request was denied. The record indicates that other
employees performed complainant's duties so that she could learn her
duties a few at a time and participate in training, and that co-workers
assisted in training complainant and corrected her mistakes. There is
no evidence that complainant did not receive her proper pay or benefits.
The record reveals that complainant was paid administrative leave when
the office closed due to winter conditions and for holidays and that
her medical benefits were canceled on the last day of her employment.
There is also no evidence that complainant's job description changed at
any time following the commencement of her employment. The record reveals
that complainant's position required an understanding of an electronic
spreadsheet and basic computer and mathematical skills. Other than her
allegation that her job description was being manipulated and changed
to circumvent laws and regulations, complainant has failed to show that
these alleged actions were taken discriminatorily. Regarding the computer
only allowing complainant a certain amount of time for processing and
shutting down while she was performing work, the record indicates that
complainant could still have completed her work because other employees
were able to do so. Other than mere assertions, complainant has failed
to show that she was subjected to a hostile work environment.
Construing the evidence to be most favorable to complainant, we find
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward complainant's protected
classes or in reprisal for prior EEO activity.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 15, 2007
__________________
Date
1 Due to a new Commission data system, this case has been re-designated
with the above-referenced appeal number.
2 The record indicates that "rooftop" refers to receipts from the use
of military credit cards.
3 The record reveals that complainant did not provide an affidavit in
this matter although the investigator had requested that she do so.
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0120055825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055825