United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT
the Court is a Motion for Summary Judgment filed by Defendant
Jacob L. Lew, Secretary of the Department of Treasury (the
“DOT” or “Defendant”). (Doc. 23.)
Plaintiff Karen Jackson, an African American, Muslim employee
of the Internal Revenue Service, brings this action against
the DOT, alleging discrimination on the basis of her race and
religion as well as retaliation for Equal Employment
Opportunity (“EEO”) activity in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended, 42 U.S.C. § 2000e et
seq. For the reasons below, the motion is GRANTED.
General Background Employment Information
has been employed by Defendant since January 20, 1997.
(Complaint ¶ 3, doc. 1; Pl.'s Decl. Ex. 2, at
p.00176, doc. 23-2.) As of October 10, 2007, Plaintiff began
working in her current position as a contact representative
in Accounts Management. (Complaint ¶ 1; Pl.'s Decl.
at p. 00176.) Plaintiff has a satisfactory work record and
most recently was assigned to work the night shift.
(Complaint ¶ 8.) Plaintiff is an African American and a
practicing Muslim. (Pl.'s Decl. at pp. 00176-77.)
Nicks (“CM Nicks”), a white female, was
Plaintiff's Front-Line Supervisor Contact Manager from
January 27, 2013, to January 27, 2014. (Nicks Decl. Ex. 3, at
p. 00218, doc. 23-3.) Plaintiff's second level
supervisor, Kimberly Block (“DM Block”), was the
Department Manager for Wage and Investment, Accounts
Management from February 2012 to June 15, 2013. (Block Decl.
Ex. 4, at p. 00252, doc. 23-4.) DM Block identifies her race
as black and her religion is African Methodist Episcopal.
(Id.) Kim Bailey (“OM Bailey”) was
Operations Manager of Kansas City Accounts Management in
2013. (Bailey Decl. Ex. 5, at p. 00306, doc. 23-5.) OM Bailey
identifies her race as black and her religion is Baptist.
Nicks and Plaintiff were part of Team B103 within Kansas City
Accounts Management, which in 2013, consisted of twelve other
employees-eleven contact representatives and one clerk. (Team
B103 Ex. 7, doc. 23-7.) Of these twelve other employees,
three employees are black and one other employee identifies
her religion as “Non-Christian.” (Id.)
date, Plaintiff's performance evaluations as a contact
representative have been at least “meets
expectations” indicating that she can and has performed
the essential functions of her job to expected levels of
performance. (Complaint ¶ 8.) In December 2013,
Plaintiff received an annual performance appraisal from CM
Nicks and a reviewing official with an overall rating of
“Exceeds Fully Successful.” (Perform. Appraisal
Ex. 6, at pp. 00547-556, doc. 23-6.)
Hostile Work Environment, Disparate Treatment, and
Retaliation under Counts I, II, and III (Claims 1-13)
1: Since April 2013, Plaintiff's supervisor is
hostile and condescending towards her and tries to intimidate
does not allege that any offensive, vulgar language or slur
regarding her race or religion was directed at her or spoken
in her presence. (Pl.'s Decl. at pp. 00177-181.)
Plaintiff does not recite any insult, racial or religious
jokes made to her. (Id.) Plaintiff supports this
claim by a sworn statement she received that CM Nicks
frequently used offensive and vulgar language when speaking
of Plaintiff and other African American employees. (Pl.'s
Decl. at p. 00177; Syring Decl. Ex. 1b, doc. 29-2 at 7.)
Nicks denies being condescending towards Plaintiff or
intimidating her. (Nicks Decl. at pp. 00218-19.) CM Nicks
states that Plaintiff was provided feedback for not closing
cases and regarding timeliness, time utilization, workload
management, and failure to follow directives. (Id.
at p. 00219.)
Block asserts she is not aware of Plaintiff being harassed.
(Block Decl. at p. 00252.) DM Block states Plaintiff reported
that her managers did not like her after she was counseled or
received critical feedback on performance or conduct issues
by managers Susan Walton in 2012 and CM Nicks in 2013.
(Id. at pp. 00252-53.) DM Block states that when
discussing the feedback with Plaintiff, Plaintiff remarked a
desire to do better. (Id. at p. 00253.) DM Block
asserts other employees in Plaintiff's group, Eugenia
Evans, and Rodney Hader, and others, had similar performance
issues and received similar feedback. (Id. at p.
00254.) DM Block asserts performance, attendance and conduct
were addressed with all employees. (Id.)
Bailey recalls a meeting with Plaintiff and her “NTEU
representative.” (Bailey Decl. at p. 00306.) OM Bailey
recalls the union representative advising Plaintiff not to
answer OM Bailey's question, but does not recall the
specific question. (Id. at p. 00307.) OM Bailey
states that during that time period, NTEU was making a
concerted effort to disrupt “the Department” and
Plaintiff's work unit causing employees to make
unreasonable demands and refuse to follow management
directives. (Id.) OM Bailey witnessed Plaintiff
refusing to follow contract provisions for requesting and
receiving, among other things, religious compensatory time
(“RCT”) and pursuant to the Family Medical Leave
Act (“FMLA”). (Id.)
2: After May 10, 2013, Plaintiff's supervisor denied
her request for advanced sick leave for the period of May 6,
2013, through May 10, 2013, and she was required to take
began 2013 with no reservoir of built-up sick leave or annual
leave. (See Walton Memo. Ex. 8, at p. 00529.) As of
May 18, 2013 (pay period 9), Plaintiff had an annual leave
balance of zero and a negative sick leave balance (-57.25).
(SETR T&A Record, Oct. 3, 2014, Ex. 9, at p. 00499.) In
early 2013, Plaintiff electronically requested annual leave
for July 9, 2013, which was the first day of Ramadan.
(See Pl.'s Decl. at p. 00207.) In May 2013,
Plaintiff alleges that a tree fell on her home during a late
snow storm and that during cleanup and removal of the tree,
she injured her back. (Id. at p.00181.) Plaintiff
had no sick leave to use during her absence in May 2013.
(SETR T&A Record, Oct. 3, 2014, at p. 00499.) Because
Plaintiff had no sick leave, her absences in May 2013 were
originally characterized as absent without leave
(“AWOL”). After Plaintiff provided medical
documentation, the time she was absent, May 7 through May 10,
2013-was recorded as 9.5 hours annual leave, and 30.5 hours
Leave Without Pay (“LWOP”). (SETR T&A Record,
Oct. 3, 2014, at p. 00499.)
LWOP, advance annual, and advance sick leave is approved by
the Operations Manager. (Block Decl. at p. 00268.) This
policy was in place in the Kansas City directorate to ensure
consistency. (See Id.) OM Bailey denied
Plaintiff's requests submitted on May 14 and May 20,
2013, for advance sick leave for the period of May 6 through
May 10, 2013, because the requests were submitted after the
leave was taken. (Pl.'s Leave Req. Ex. 10, at pp.
00511-16, doc. 23-10.) OM Bailey approved LWOP for that time
period. (See Id. at p. 00511.)
Employee Leave Audit of Plaintiff's use of leave from
January 13 to December 29, 2013, showed that she used 209.50
hours of annual leave, 46.75 hours of sick leave in December
2013, 4.50 hours of RCT, 40.50 hours of LWOP and 219.50 hours
of other leave, including administrative leave and her
furlough during the government shutdown in October 2013.
(Employee Leave Audit Ex. 11, at pp. 00495-00496, doc.
23-11.) The audit reflected Plaintiff had 1.50 hours of AWOL
for pay period 12 (June 16 - 29, 2013) and 1.75 hours for pay
period 25 (December 15 - 28, 2013). (Id.)
3: In or around June 2013, Plaintiff's supervisor
rejected her FMLA forms and made her complete new forms
before approving FMLA leave for the period of May 13, 2013,
through June 1, 2013.
requested leave pursuant to the FMLA covering the period from
May 13 through May 28, 2013, which was provisionally granted
by CM Nicks. (Plt.'s FMLA Appl. Ex. 12, at p. 00506, doc.
23-12; Nicks FMLA Memo. Ex. 13, at p. 00508, doc. 23-13.)
Plaintiff did not request advance sick leave for this period.
(See Pl.'s Leave Req., at pp. 00511 and 00513.)
FMLA leave was denied when the medical information was
determined by Federal Occupational Health to be insufficient.
(Nicks FMLA Memo., June 1, 2013, Ex. 14, at p. 00509; Nicks
Decl., at p. 00221.) LWOP pursuant to FMLA was later granted
for the period after further medical information was provided
by Plaintiff and her physician.
4: On June 5, 2013, Plaintiff was issued a disciplinary
memorandum for insubordination.
Nicks issued Plaintiff a memorandum dated June 5, 2013, for
failure to follow a management directive. (Nicks Memo., June
5, 2013, Ex. 15, at p. 00528, doc. 23-15.) During a team
meeting on June 4, 2013, the team was reminded that it would
be performing four hours of “CIS” work on
Tuesdays and Thursdays until further notice and that after
the meeting, everyone was to begin “statute
stamping/clearing” work. (Id.; see
Nicks Decl., at pp. 00221-22.) Plaintiff, instead of
performing any statute stamping/clearing work, worked on a
case she had been working prior to the meeting.
excuse was that a white male on the team, Rodney Hader, asked
permission to complete the case he was working on prior to
undertaking the new task assigned to the team during the June
4 meeting, and CM Nicks approved the request. (Plt.'s
Decl. at p. 00185.) Plaintiff stated she had a case similar
to Mr. Hader's and presumed that CM Nicks'
authorization of Mr. Hader's action would apply to her as
well even though she did not request permission to deviate
from the directive. (Id.)
Block reviewed CM Nick's June 5, 2013 memorandum at
Plaintiff's request and found Plaintiff's work that
day did not preclude her from following her manager's
directive to work statute cases. (Block Decl. at pp.
00257-58.) DM Block found the memorandum to be warranted.
5: Since June 2013, Plaintiff has been denied proper
Identify Theft training.
April 22, 2013, Plaintiff was notified to attend Identity
Theft class from April 30 through May 3, 2013. (Nicks Decl.,
at p. 00222.) She attended 28 hours of the 32 hours provided,
while missing some number of hours because of her absence.
She also missed the on-the-job follow-up training. Plaintiff
was scheduled for the Identity Theft Refresher training on
June 11-12 from 7:30 a.m. through 4:00 p.m. (Id.) On
June 12, 2013, Instructor Erika Miller sent an e-mail to
Plaintiff's supervisor indicating Plaintiff was sleeping,
playing with her phone and surfing the internet during class.
(Id. at pp. 00222-23.) Plaintiff was provided 8
hours of additional Identity Theft training (2 hours each day
for four days) from August 28 through September 4, 2013, by
the same instructor who taught the original class.
(Id. at p. 00223.) Plaintiff conceded that she
nodded off during the refresher training. (Plt.'s Decl.,
at p. 00186.)
6: On or about June 19, 2013, Plaintiff's supervisor
made repeated trips passing by her desk, stopping at her desk
and invading her workspace.
Nicks did not recall closely observing or paying more
attention to Plaintiff than any other employee on June 19,
2013. (Nicks Decl., at p. 00224.) CM Nicks was responsible
for 15 employees in three aisles and walked up and down these
aisles throughout the day to speak to everyone and observe
what they were doing. (See id.) Employees are
expected to be productive and use their time wisely. (Nicks
Decl., at p. 00224.) CM Nicks observed Plaintiff not working
on several occasions and being on a cell phone, e-mail, or an
I-pad. (Id.) Plaintiff does not allege that CM Nicks
ever touched her or made any obscene, vulgar, offensive or
bigoted comment or gesture regarding her race or religion in
her presence. (Plt's Decl., at pp. 00177-181 and
7: In or around the week of June 24, 2013, Plaintiff was
treated differently than her coworkers when she was told to
work the telephones.
alleges that temporary work leader Kevin Bowen asked her to
work the phone when she was expecting to work “ID theft
cases, ” and she claims that she was the only employee
asked to get on the phones. (Plt.'s Decl., at p. 00190.)
CM Nicks stated that Plaintiff would have been assigned to
the phone to meet phone staffing requirements. (Nicks Decl.,
at pp. 00225-00226.) Any team member may be assigned to that
work. (Id.) Talking with taxpayers on the phone is a
core element of Plaintiff's job description as a contact
representative. (See Nicks Decl., at p. 00226.)
Block testified that Plaintiff's duties as a contact
representative requires working both account phones and
adjustment paper. (Block Decl., at p. 00262.) DM Block states
Plaintiff would have been asked to staff the phone to meet
call volumes. (Id.) DM Block reports that
Plaintiff's timesheet reflects work of 1 hour phone time
for the week and notes that Plaintiff's team had the
highest phone requirements for the Department that week.
review of the phone log records shows during the week in
question that Plaintiff was actually on the phone for 1 hour,
37 minutes, and 10 seconds. (Phone Records Am. Ex. 16, at pp.
04256-04260, doc. 32-1.) An additional three team members
each logged over an hour on the phone. (Id.)
8: Since on or around June 24, 2013, Plaintiff has been
issued unfair performance feedback, including receiving
excessive evaluation reviews and time utilization memoranda,
and not being given the benefit of non-evaluative reviews.
are required to perform work reviews of each team member on a
Block testified that the relevant guidelines provide for
completion of evaluative reviews as follows:
• Frontline Managers are required to complete 2
evaluative reviews (per month)
• Leads are required to complete 2 evaluative reviews
• Weekly Age Case Listing Reviews are required
• 2 Critical Job Element (CJE 5) reviews
• Efficiency Reviews as warranted
• Form 3081 Reviews And various other reviews/feedback
based on the employee's performance.
(Block Decl., at p. 00263; see IRM 1.4.16 Ex. 33, at
pp. 04192-97, doc. 23-33.)
of Plaintiff's work were not excessive and were within
management guidelines for reviewing employee performance.
(Plt. Eval. Report Ex. 17, pp. 00645-00671, doc. 23-17.) A
cumulative report of the Embedded Quality Review System sets
forth a total of 40 Evaluative Reviews of Plaintiff's
work in 2013. (Id.) Over an equal period of time
team member Sallie Rasmussen, a white Christian, had 41
evaluative reviews of her cases. (Rasmussen Eval. Report Ex.
18, at pp. 02900-02921, doc. 23-18.) A chart prepared by the
EEO Investigators regarding the number of work reviews of the
members of Team B103 from May to December 2013 shows that the
number of reviews of Plaintiff's work is consistent with
the number conducted on her co-workers. (Team B103 Review
Chart Ex. 20, doc. 23-20.) Non-evaluative reviews are only
used when ...