0120071036
06-19-2009
Marilyn Pankoke, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Marilyn Pankoke,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071036
Hearing No. 320200500265X
Agency No. HS04CIS000491
DECISION
On December 15, 2006, complainant filed an appeal from the agency's
October 26, 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Information Officer at the agency's Nebraska Service
Center in Lincoln, Nebraska. On April 8, 2004, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
disability (cancer) and reprisal (participation in protected EEO activity)
when complainant and her staff were unduly singled out for scrutiny
and insensitive treatment and management failed to support complainant
regarding the behavior of fellow supervisors toward complainant and her
work unit.
The record reflects that complainant previously was treated for cancer
while employed at the facility. Complainant stated that after the
husband of the Assistant Center Director (ACD) passed away from cancer,
the ACD began to harass complainant. The ACD stated that she believed
that complainant's subordinate employees were not doing enough work. The
ACD repeatedly announced at supervisory meetings that complainant's work
unit was failing to perform in a sufficiently proficient manner.
In 2002, complainant reported to the ACD that a supervisor under the
ACD's supervision was helping another employee to achieve the employee's
hourly quota. The ACD told complainant that it was not her role to inquire
about the situation and that complainant should learn how to handle her
own employees.
On February 14, 2004, complainant reported one of her subordinates to
the Office of Internal Audit (OIA) for misconduct. After complainant
reported the employee, the employee filed an EEO complaint against
complainant. Complainant was required to testify. Complainant alleged
that the ACD encouraged the employee to file the EEO complaint against
complainant because the ACD was upset about complainant going over her
(the ACD's) head to report the employee. After February 14, 2004, the
ACD determined that complainant and her staff made errors on a number
of occasions. In her affidavit, the ACD stands by her assessments of
complainant's performance. The record shows that the ACD's job was
to ensure that the Service Center met its case processing goals and
this required that the supervisors be kept informed of the rate of
goal attainment. The ACD asserts that the actions were the result of
misunderstandings and a difference in approach.
At the conclusion of the investigation, complainant was provided 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 hearing but the AJ subsequently dismissed her hearing request on the
ground that complainant disregarded the AJ's order concerning the further
processing of the case. The AJ remanded the complaint to the agency, and
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
We note that complainant does not challenge this action on appeal.
The agency concluded in its decision that complainant failed to prove
that she was an individual with a disability, failed to show that she
was subjected to an adverse action, and failed to show that the agency's
reasons were a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant argues that the agency erred in finding that she did
not suffer an adverse employment action and that the agency has been
compromised by the lack of support by complainant's supervisors.
The agency did not submit a brief in response to complainant's appeal.
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").
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
For purposes of our analysis, we assume without so finding that
complainant is an individual with a disability and that she established
the elements of her prima facie case of reprisal. Further, we find that
the agency articulated legitimate reasons for its actions. Inasmuch as
the agency has articulated legitimate, non-discriminatory reasons for
its actions, our analysis turns to whether complainant has demonstrated
that the reasons are a pretext for discrimination or reprisal.
In this case, we find that complainant presented no evidence that the
criticism given to complainant was due to any disability or because
complainant engaged in prior EEO activity. Complainant failed to proffer
any evidence that the stated reasons were due to disability or unlawful
retaliation.
Because we are affirming the agency's finding of no discrimination on
the ground that the evidence does not establish pretext, we need not
address complainant's alternative arguments for reversal, i.e., that
the agency erred in finding that she failed to establish the elements
of her prima facie case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 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 (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 (Z1008)
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
June 19, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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