0120065199
05-22-2008
Christine J. Cooper, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Christine J. Cooper,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 01200651991
Agency No. HS-05-0874
DECISION
On September 14, 2006, complainant filed an appeal from the agency's
August 10, 2006, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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.
The appeal is deemed timely and is accepted for the Commission's de novo
review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reflects that complainant was hired in September 2003 as a
Customs and Border Protection (CBP) Officer, GS-1895-7, at the agency's
Seattle Field Office in Seattle, Washington. Shortly after she was
hired, complainant reported to the Federal Law Enforcement Training
Center (FLETC) in Glynco, Georgia and became the Seattle Field Office's
first graduate from the FLETC under the agency's new CBP Officer regime.
In January 2004, complainant returned to the Seattle Field Office and
began participating in a required training program. The program primarily
consisted of two on-the-job training modules: primary passenger training,
typically lasting eight weeks and focusing on immigration issues, and
secondary passenger training, typically lasting six weeks and focusing
on agriculture and customs issues.
Several weeks into her first training module, agency officials in
the training branch determined that complainant would not be able to
successfully complete the primary passenger training module at that time,
and she was transferred to the secondary passenger training module in
late February/early March 2004. Complainant subsequently began remedial
primary passenger training in June 2004. In August 2004, agency officials
terminated complainant for failing to demonstrate that she possessed
the necessary abilities to adequately perform as a CBP Officer.
On October 8, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female) and age (54)
when, beginning in January 2004, she was allegedly subjected to harassment
culminating in her termination during her probationary period on August
24, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish that
the agency's legitimate, nondiscriminatory reasons for her termination
were a pretext for unlawful sex or age discrimination. The agency also
found that complainant's allegations failed to rise to the level of a
severe and pervasive hostile work environment.
CONTENTIONS ON APPEAL
On appeal, complainant, through her representative, argues that the
agency erred in finding no discrimination. Complainant argues that
she was treated differently than younger male officers regarding her
termination and training opportunities. Complainant further argues that
she was subjected to a severe and pervasive hostile work environment.
In response, the agency urges the Commission to affirm its final
decision.2
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We find that the agency articulated legitimate, nondiscriminatory
reasons for terminating complainant. Specifically, the agency
informed complainant that she was being terminated because she failed
to demonstrate "acceptable comprehension of the knowledge required for
successful performance;" she was unable "to demonstrate the application of
the skills and techniques of a successful CPB Officer;" and her conduct
"indicated a disregard for authority and a lack of cooperation during
training evolutions and counseling sessions."
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that complainant failed to provide any evidence of
pretext in the record. Moreover, we find that the record is devoid of
any evidence that the agency's actions were motivated by discriminatory
animus towards complainant's sex or age. The record contains memoranda
and affidavits from multiple agency officials from the training branch
documenting complainant's performance problems. Agency officials noted
that she was uncooperative and unresponsive to advice. Officials also
noted that she made several mistakes during training, such as failing
to detect that a handful of people she admitted had switched their
documentation.
Complainant argues that she should not have been terminated
because she was not provided with advance notice of her performance
deficiencies/evaluations and she was treated differently than younger,
male officers. However, agency officials stated in the record that
complainant was given one-on-one training, regularly provided with
feedback throughout her training modules, and given an official
counseling in July 2004 regarding her performance deficiencies.
Regarding complainant's treatment with respect to younger, male officers,
an agency official noted that two male officers who were also experiencing
performance problems during training were not terminated because, unlike
complainant, they had improved their performance after receiving feedback.
Agency witnesses also refuted complainant's claim that the Chief of
Passport Control directly threatened to terminate someone at a meeting
with complainant and four male employees. We note that complainant
contended that a male officer was not terminated even though he had
allegedly left a firearm in a public area, but she failed to produce any
evidence in support of this contention. Although complainant challenges
the credibility the agency officials' testimony, we note that she did
not request a hearing, and the Commission is limited to a review of
the record evidence. As a neutral party, we are not persuaded, based
on the record of investigation and statements submitted on appeal,
that complainant has shown that the agency's articulated reasons for
her termination were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) she is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that complainant failed to provide
sufficient evidence in the record to show that the cumulative incidents
she cites are sufficiently severe or pervasive to create a hostile
work environment. We also find no persuasive evidence in the record to
show that a reasonable fact finder would find that any of the alleged
harassment was motivated by unlawful animus towards complainant's
protected classes.
CONCLUSION
Accordingly, based on a thorough review of the record, including the
evidence not specifically addressed herein, the agency's final decision
finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 22, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The agency also argues that complainant's brief should not be considered
because it was untimely. However, the record reflects that the Commission
granted complainant's request for an extension of time to file her brief,
and, as a result, her brief was filed in a timely manner on October 31,
2006.
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0120065199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065199