Barbara B. Johnston, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 15, 2007
0120055825 (E.E.O.C. Mar. 15, 2007)

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