0120112731
10-14-2011
Margaret R. Johnson, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Margaret R. Johnson,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120112731
Agency No. 2010061
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s March 28, 2011 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 Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Financial Consultant at the Agency’s Johnsonville, Fossil Plant
facility in Johnsonville, Tennessee.
On September 1, 2010, Complainant filed a formal complaint alleging
that the Agency had subjected her to hostile workplace discrimination
on the bases of sex (female) and disability (Multiple Sclerosis) when:
1) beginning in October or November 2009, management refused to attend
weekly cost meetings that she scheduled; 2) on or about April 23, 2010,
management refused to attend a meeting to finalize the plant budget;
3) on or about May 5, 2010, management refused to assign her to a more
quiet workspace; 4) on or about May 25, 2010, management singled her out
and assigned someone to review a monthly forecast she had completed; 5)
on about June 9, 2010, she was notified that her employment was being
terminated, effective June 23, 2010; and 6) effective June 23, 2010,
the Agency terminated her employment.
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 EEOC Administrative Judge (AJ). Complainant requested a
final decision within the time frame provided in 29 C.F.R. § 1614.108(f).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
its actions. Complainant's supervisor stated that all plant financial
consultants were asked to schedule meetings with plant management on a
weekly basis to review financial data, but Complainant was not requesting
the meetings. Getting plant management officials to attend financial
meetings was a challenge for other financial consultants, and not just
for Complainant. At some plants, management "actively attended and
participated" in cost meetings. At other Agency plants, management did
not participate in the meetings. According to Complainant's supervisor,
the lack of participation from plant management would not have affected
Complainant's ability to do her work. Also, when the plant manager
had requested a budget meeting, Complainant responded that she was
unprepared. In fact, Complainant admitted that the plant manger took
steps to ensure that other management officials attend a scheduled
meeting with Complainant.
Regarding Complainant's request for a quiet workspace, Complainant's
supervisor acknowledged that she was aware of Complainant's request
and that Complainant made the request when she began work at the plant.
She explained that the business services group was a "support function."
Therefore, plant management was responsible for all office space at a
plant location. However, both Complainant's supervisor and another
employee who was training Complainant visited the plant to evaluate
Complainant's workspace, and they did not find that the workspace was
"overly noisy." There was no indication that Complainant's workspace
was any different than any other area. Even when Complainant notified the
plant manager about her need for a quieter workspace, the plant manager
told her that no space was available. Although Complainant stated in
her pleadings that her request for a quieter workspace was related to
her disability, there is no evidence to show that management was aware
of her disability.
In response to Complainant's allegation that management singled her
out and assigned someone to review her monthly forecast, Complainant's
supervisor indicated that Complainant's work was reviewed because of her
performance. She explained that there were problems with the accuracy
of Complainant's work. The plant manager at Complainant's site "had
been ill-prepared for months because he did not have good information"
from Complainant. Complainant's supervisor explained that Complainant was
deficient in her ability to interpret financial information and correlate
that information with what was occurring at the plant. In addition to
providing inaccurate information, Complainant struggled with putting
the information in the proper format. Management noted that although it
was not uncommon for financial consultants to struggle within the first
month of being in the position, Complainant had performance problems
six months after she was hired.
Regarding Complainant's notice of termination and eventual termination,
management explained that Complainant's employment ended because of her
work performance. Complainant's supervisor stated that Complainant was
terminated because "she was unable to display the skills necessary to
manage multiple assignments, complete assignments on time, exercise good
judgment in her assignments or to communicate professionally." In the
notice of termination, Complainant was informed that her employment was
ending because of her inability to meet the performance expectations of
her position.
Significantly, management witnesses stated they were not aware of
Complainant's disability until the day of her termination. Although
Complainant said that she notified her supervisor about her dizziness,
numbness, and "wakefulness problems," Complainant admitted, and the record
reflects, that she did not disclose that she had Multiple Sclerosis.
With regard to Complainant's remaining allegations, the Agency maintains
that there is no evidence to indicate that management's actions were
pretext for unlawful discrimination.
In conclusion, the Agency found that there was no evidence that any
of the actions or decisions of Agency management were motivated by
unlawful reasons and Complainant failed to establish that any of
management's reasons for its actions were pretextual or unworthy of
belief. Accordingly, the Agency determined that Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the Agency did not
accommodate her disability.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission’s own assessment of the record and its interpretation of
the law”).
To the extent Complainant is alleging disparate treatment with respect
to her claims, Agency management witnesses have articulated legitimate,
nondiscriminatory reasons for the disputed actions. Complainant’s work
performance problems over time were detailed by witnesses, and this
was the reason proffered by management for the decision to terminate
her employment. The monitoring of Complainant’s work was explained
as an attempt to improve her work performance. The failure to attend
meetings were explained as resulting from the press of other business or
the lack of faith in Complainant’s representations due to errors in her
work. Complainant has not proven that the Agency's stated reasons for
its actions were a pretext for discrimination. For the same reasons,
Complainant has not proven her claim of discriminatory harassment with
regard to the events that occurred prior to her termination. First,
even considering the events alleged in claims (1) – (4) together,
Complainant has not shown that the purported harassment had the purpose
or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
Moreover, Complainant again has simply not established any connection
between the events alleged and her gender or disability.
Finally, EEOC regulations require that federal agencies not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental impairments of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. §§
1630.2(o) and (p). However, in this case, there is no evidence that
Agency management had knowledge of Complainant’s disability prior
to her termination. Therefore, under these circumstances, the Agency
did not violate any duty it had to provide Complainant a reasonable
accommodation for her disability.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 14, 2011
__________________
Date
2
0120112731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112731