0120072101
08-30-2007
Marilyn Pankoke, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Marilyn Pankoke,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072101
Agency No. HS-06-CIS-002922
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 26, 2007, dismissing her formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In its February 26, 2007 decision, the agency determined that
complainant's November 13, 2006 complaint claimed that she was subjected
to discrimination on the bases of sex, age, and in reprisal for prior
protected EEO activity when:
1. On June 21, 2006, despite having previously warn[ed] the Supervisory
Applications Adjudicator (SAA) about errors made by the SAA's subordinate
employee and no action being taken, she was informed that she would have
to correct those errors causing her to do additional work.
2. On or about June 26, 2006, complainant was required to participate
in the Equal Employment Opportunity Commission hearing of a former
subordinate employee in a room with a glass door and windows with exposure
to a common hallway. In addition, she was not provided with documents
that would have assisted her testimony and was told that she would not
be informed of the outcome of the hearing.
3. On August 2, 2006, the Assistant Center Director Residence Product
Line (ACD-RPL) sent an e-mail to complainant, which was copied to other
supervisors that questioned whether she knew how to do her job.
4. On August 2, 2006, complainant learned that the former subordinate
employee who had filed a discrimination complaint involving her, might
return to work at the agency as a result of the agency upholding his
complaint.
5. On August 15, 2006, the SAA falsely reported to the ACD that
complainant had failed to notify her of errors made by the SAA's
subordinate employee when complainant actually had [notified her].
6. On August 15, 2006, the ACD-RPL informed complainant's supervisor,
the Assistant Center Director of Adjudications, that the prior practice of
reporting I-485 files and errors to be sent to her subordinate supervisors
to document errors for Performance Work Plan purposes would no longer be
the practice, which complainant believes was done for personal reasons.
7. On August 15, 2006. complainant learned that the SAA was completing
second level authorization on I-551 resident-alien cards, which could
result in duplicate cards being issued and a possible fraud claim being
raised against complainant.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant had suffered no adverse
action, and was therefore not aggrieved, and that she failed to describe
incidents rising to the level of a hostile work environment.
Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
The instant complaint fails to state a claim under EEOC regulations
because complainant failed to show that she suffered a harm or loss
with respect to a term, condition, or privilege of her employment.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Even when viewed together in a light most favorable
to complainant, the events described do not indicate that complainant has
been subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of her employment. See Cobb v. Department of the
Treasury, Request No. 05970077 (March 13, 1997). Moreover, the alleged
agency actions were not of a type reasonably likely to deter complainant
or others from engaging in protected activity.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
August 30, 2007
__________________
Date
2
0120072101
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072101