Marilyn Pankoke, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJun 19, 2009
0120071036 (E.E.O.C. Jun. 19, 2009)

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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