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Jackson v. Lew

United States District Court, W.D. Missouri, Western Division

March 17, 2017




         Before 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.

         I. Facts[1]

         A. General Background Employment Information

         Plaintiff 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.)

         Jacqueline 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. (Id.)

         CM 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.)

         To 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.)

         B. Hostile Work Environment, Disparate Treatment, and Retaliation under Counts I, II, and III (Claims 1-13)

         Claim 1: Since April 2013, Plaintiff's supervisor is hostile and condescending towards her and tries to intimidate her.

         Plaintiff 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.)

         CM 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.)

         DM 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.)

         OM Bailey recalls a meeting with Plaintiff and her “NTEU representative.”[2] (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.)

         Claim 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 annual leave.

         Plaintiff 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.)

         All 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.)

         An 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.)

         Claim 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.

         Plaintiff 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.

         Claim 4: On June 5, 2013, Plaintiff was issued a disciplinary memorandum for insubordination.

         CM 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. (Id.)

         Plaintiff's 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.)

         DM 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. (Id.)

         Claim 5: Since June 2013, Plaintiff has been denied proper Identify Theft training.

         On 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.)

         Claim 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.

         CM 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 00188-89.)

         Claim 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.

         Plaintiff 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.)

         DM 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. (Id.)

         A 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.)

         Claim 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.

         Managers are required to perform work reviews of each team member on a regular basis.

         DM 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 (per month)
• 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.)

         Reviews 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 ...

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