Petition for Writ of Certiorari — Arensdorf v. Paulson (No. 09-169)
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09-169 AUG 03 2009
OFFICE OF THE CLERK
William K. Suter, Clerk
No.
IN THE
SUPREME COURT OF THE UNITED
STATES
Donna J. Arensdorf,
Plaintiff -Appellant
Vv.
Henry M. Paulsen,
Defendant —Appellee
ON PETITION FOR WR)T OF
CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CER’ IORARI
DONNA J. ARENSDORF,
PRO SE
10915 PRAIRIE HAWK DR.
HOUSTON, TEXAS 77064
CELL 832-860-3544
QUESTIONS PRESENTED FOR
REVIEW
Rule 14.1 (a)
1. Did Appellant prove prima
sex discrimination?
2. Did Appellant prove prima
age discrimination?
3. Did Appellant prove prima
sexual harassment?
4. Did Appeliant prove prima
Hostile Work Environment?
5. Did Appellant prove prima
Retaliation?
facie
facie
facie
facie
facie
in
in
in
in
in
6. Did Appellant prove Whistleblowing
Retaliation?
7. Did Appellant prove prima facie
under McDonnell Douglas Test?
8. Should a jury decide the credibility
of the Appellant and the Appellee?
ii.
9. Was the Internal Revenue Service
required to follow the Civil Service
Reform Act of 1978 and Title 5, U. S.
Code Chapter 43 prerequisites to
prepare a performance evaluation that
was used to terminate the Appellant?
10. Was the Internal Revenue Service
required to use ali sub-elements and
aspects under the critical element to
determine if the Appellant failed one
entire critical element?
ili.
PARTIES TO PROCEEDING
PURSUANT TO RULE 14.1(B). AND
AND 29.6
Donna J. Arensdorf is an individual
who was an employee of the Internal
Revenue Service, Department of the
Treasury. The Defendant-Appellee,
Henry M. Paulsen was Secretary of the
Treasury.
iv.
TABLE OF CONTENTS
QUESTIONS PRESENTED................. i-ii
STATEMENT PURSUANT TO RULE
aa ebddesvsiscencscesdshdsenseeererctvensesdassissen iii
TABLE OF CONTENTS. ..............s00seeee iv
TABLE OF CITED AUTHORITIES....v-vi
TABLE OF APPENDICEG................... vii
CPP RAPT MIRE RE TY sedkeccccccnenscrstosccoccsseces 1
STATEMENT OF JURISDICTION......... 2
STATUTES INVOLVED). .ccccccvvccccccssccccose 3
SUMMARY OF THE CASE................ 3-17
STATEMENT OF THE CASE........... 17-38
REASON FOR GRANTING THE
FT scksacccocnarviebierneravsrnesasecseens 38-39
Vv.
TABLE OF CITED AUTHORITIES
CASES
Burlingion Industries, Inc. v. Ellerth,
BS4 U.S. FEB CLGGS) ccccccvcvccccccccese 17, 18, 31
Burlington N. & Santa Fe Ry. Co., v.
White, 548 U. S. 53, 67-68 (2006)...... 32, 34
Cleveland Bd. Of Ed. V. Loudermill, 470
Os Whe ee EE i entesi vp scnstansrsbavesecssens 39
Farragher v. City of Boca Raton, 524 U.
i os 5isbdhenecéindebussunsonencase 17, 18, 31
Harris v. Forklift Systems, Inc., 510 U.S.
17, 25; 114 S. Ct. 367; 126 L ed. 2d 295
O’Connor v. Consolidated Coin Caters,
BEF Oe iy Cr iakctcccccccscectcécccncivctss 26
Oncale v. Sundowner Offshore Services,
Inc. 523 U.S. 75, 80; 118 S. Ct. 998; 140L
Be ei srcesusctscevansecepecececessastes 28
Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
vi
nd nie sedi cncnetaccssnesesensontetnes 3
Pollard v. E. I, Dupont de Nemours &
Co., 121 S. Ct. 1946 (Sup Ct. 2001).........31
Reeves V. Sanderson Plumbing Prods.,
Inc., 580 U.S. 130, 150-51 (2000) .......... 35
Rutherford v. Harris County, 197 F. 3d
ETS, BOO Ce GIT, LOCO psec ccccccccccccscceseccecs 35
St. Mary’s Honor Center v. Hicks, 509 U.
Bs Big PT Cee evcccscccessesccesccosecceees 18
| STATUTES
ee I NG OPE acniskcsctsccccccupennccaceses 17
Fe le er Pins snssnccesecdsccsddcevencasesene Z
Ge bin ccapecrtensabveasscestaunsanenches 3
are Oe Mike RRA cabanssecdaseececnscdscddeeccdacens 3
Civil Service Reform Act of 1978...3, 4,24
Title 5, U.S. C. Chapter 43............. 3, 4,24
Title VII, Civil Rights Act of 1964.........18
Vii
RULES
Rule 4 of the Fed. R. App. Proc.............. 3
TABLE OF APPENDICES
APPENDIX A
Decision for the U. S. Court of Appeais
for the Fifth Circuit dated May 12, 2009
APPENDIX B
Final Judgment of the United States
District Court, Southern District of
Texas, Houston Division dated October
2, 2008
APPENDIX C
Memorandum and Order of the United
States District Court, Southern District
of Texas, Houston Division dated
September 29, 2008.
TO THE HONORABLE CHIEF JUSTICE
OF THE UNITED STATES SUPREME
COURT AND TO THE ASSOCIATE
JUSTICES OF THE UNITED STATES
SUPREME COURT:
Appellant, Donna Arensdorf, files’ this
Petition for Writ of Certiorari requesting
that this Honorable Court review the
Judgment of the United States Court of
Appeals for the Fifth Circuit affirming the
decision of the United States District Court
for the Southern District of Texas, Houston
Division.
OPINIONS BELOW
A copy of the Judgment of the United
States Court of Appeals for the Fifth Circuit
affirming the decision of the Unites States
District Court for the Southern District of
Texas, Houston Division, is attached as
Appendix A.
A copy of the Final Judgment of the
United States District Court for the
Southern District of Texas, Houston
Division, is attached as Appendix B.
A copy of the Memorandum and Order
of the Unites States District Court for the
Southern District of Texas, Houston Division
is attached as Appendix C.
STATEMENT OF JURISDICTION
This is a civil appeal from a Decision
of a United States District Court and a
Federal Circuit Court of Appeals. The
jurisdiction of this Court is invoked under 28
U.S. C. 1254(1).
STATUTES INVOLVED
The District Court had jurisdiction
over Appellant’s claims under 28 U. S. C.
1333. Appeal was properly taken by
Appellant to the United States Court of
Appeals for the Fifth Circuit pursuant to 28
U.S. C. 1291 and Rule 4 of the Fed. R. App.
Proc.
Appellant states the Annual Appraisal
used to terminate her after 37 years of
federal employment should have been
prepared according to the Civil Service
Reform Act of 1978 and Title 5, U. S. C.
Chapter 43.
SUMMARY OF THE CASE
Appellant Arensdorf asserts that the
subjective instead of objective preparation of
the annual performance appraisal that lead
to her termination was arbitrary and
capricious, and was based on retaliation
against her by management for her prior
EEO activity and whistle blowing. The
District Court stated Petitioners TORT
claim was preempted by the Civil Service
Reform Act of 1978. The Courts have
consistently held that pre-emption occurs
only where Congress, explicitly or impliedly,
so intends. Pilot Life Ins. Co. v. Dedeaux, 481
U. S. 41, 45 (1987) (congressional intent is
the “ultimate touchstone” for pre-emption).
The judiciary’s “sole task is to ascertain the
intent of Congress.” The District Court
never addressed Congressional Intent.
Appellant Arensdorf is a Caucasian
female who worked for the Department of
Treasury, Internal Revenue Service, as a
Revenue Officer for twenty years when she
was terminated from her position on August
26, 2005 for failing to do alleged timely
actions on six taxpayer case files. ‘The
agency also stated being the actions were
alleged to be untimely that meant she also
failed inventory management on _= six
additional cases. The agency stated they
made their determination based on an
internal document, not the Civil Service
Reform Act of 1978 ,or Chapter 43 of the U.
S. Code.
Appellant Arensdorf alleged that she
suffered the adverse employment action of
termination based on age and gender, and
suffered retaliation, by the same Internal
Revenue Service officials, based on her prior
EEO activity and whistle blowing.
Appellant Arensdorf was notified on
November 19, 2003, just six weeks before her
55th Birthday on January 5, 2004, that her
work was unsatisfactory, and if she did not
improve by working faster she would be re-
assigned or terminated from her federal
position.
Appellant Arensdorf was_ informed
pursuant to group meeting that an under
forty employee was given a bonus after that
Revenue Officer was alleged to have
deficiency in taxpayer case activity.
Appellant Arensdorf alleged that she
received disparate treatment when she was
terminated for the same alleged offense for
which an under forty employee received a
bonus.
Appellant Arensdorf received an e-mail
from The Office of Personnel Management
that stated more females than males were
removed from employment in 2005. The
Office of Personnel Management also stated
that more employees over age 40 had been
terminated under Chapter 43 than under age
40 employees.
Appellant Arensdorf asserts’ that
Respondent failed to abide by the National
Treasury Employees Union Contract, Civil
Service Reform Act of 1978 and Title 5, U. S.
Code, Chapter 43 to perform an annual
appraisal that was used to terminate the
Appellant.
‘. On May 8, 2002, Appellant was
voluntarily re-assigned to the supervision of
James A. Gibson. [USCA 6 84].
4 On or about May 8, 2002,
Appellant had a conversation with Mr.
Gibson, her first line manager, in which he
stated he had no problem with her work, but
she should go faster. The Performance
Appraisal signed by Appeliant on July 23,
2003, for the period June 2002 thru June
2003, shows Appellant exceeds’ timely
actions. Item 11, Performance Aspects were
never addressed on this document. [USCA5
270]. The directions for completion of the
appraisal form state that Block 11 should list
all the aspects listed under the sub-element.
[USCA5 765]
3. On or about May 10, 2002,
Appellant asked Mr. Gibson, for additional
work, and he screamed at her, “Assign cases
to yourself.” [USCA5 1942.]
4. On or about February 3, 2003,
Appellant was notified by Mr. Gibson, that
her work was unsatisfactory. She also
received a memo stating that she never
answered his pages and never followed his
directions. [{USCA5 2572]
5. On or about July 1, 2003,
Appellant received her with-in-grade step
increase. This monetary increase would
have been withheld if Appellant’s work was
unsatisfactory. [USCA5 762].
6. On or about July 31, 2003,
Appellant received her annual appraisal for
the period June 2002, thru June, 2003, with
a rating of 3.0. Item 11, Performance aspects
were never addressed on this document.
Avpellant exceeded timely actions. The
appraisal was signed by Mr. Gibson and Mr.
Arnold. [USCA5 84, 280].
a On or about August 4, 2003, the
secretary started making inaccurate entries
on Appellant’s time record. [USCA5 2573].
8. On or about November 19, 2003,
Appellant was notified by Mr. Gibson, that
she was failing several critical elements, and
if she did not improve, she would be re-
assigned, demoted or removed from federal
employment. [USCA 5 92].
9. On or about November 19, 2003,
Appellant was advised by Mr. Gibson, to
discontinue her flexi-place agreement and
return to the office for further supervision
and assistance. [USCA 5 84, 98, 99}.
10. On January 5, 2004, Appellant
attained age 55. (Retirement Age). [LJISCA 5
84].
11. Onor about February 1, 2004, in
an EEO affidavit, Mr. Gibson, stated he had
prior involvement in the EEO process as a
complainant, witness and management
official. He also stated that he was aware
that Appellant previously participated in the
EEO process. [USCA5 1932]
12. On or about February 15, 2004,
Appellant stated in an EEO interview that in
1991 she had to file a grievance to obtain her
GS 11 promotion. [USCA5 1941]
13. On or about February 23, 2004,
Appellant received an e-mail from Mr.
Gibson, stating he wanted to meet with her,
and if she did not meet with him on the day
and time requested, that she would be
subject to disciplinary action for failure to
follow managerial direction. [USCA5 1916]
14. On or about June 7, 2004,
Appellant contacted Mr. Gibson’s supervisor,
Martin Arnold, and requested to be moved to
another manager. The request was denied.
[(USCA5 112, 141, 182, 262].
15. On or about July 28, 2004,
Appellant notified her manager, Mr. Gibson,
by e-mail, that she had an appointment with
Treasury Inspector General for Tax
Administration on August 3, 2004 at 8AM.
[USCA5 1967]
16. On or about July 31, 2004,
Appellant received her annual appraisal, for
the period June 2003, thru June ,2004, with
a rating of 2.4. Just a year earlier Appellant
received “exceeds” in timely actions, but this
time she received fails in timely actions. The
appraisal was signed by Mr. Gibson and Mr.
Arnold. [USCA 5 85]. Where performance
standard contains no explicit timeliness
requirement, charge of untimeliness cannot
be basis for Chapter 43 action. Appellant’s
performance standards did not contain a
timeliness requirement. [USCA5 540, Line
6).
17. On or about Ax.gust 18, 2004,
Appellant received a memorandum from Mr.
Gibson, stating that after 10 years working
from her home, she would have to report
back to the office to work, because she was
not working in a timely fashion according to
her appraisal dated on or about July 31,
2004. [USCA5 82].
18. On or about August 31, 2004,
Appellant strained her back lifting taxpayer
case files out of her car trunk. Mr. Gibson
demanded that she immediately return all of
the approximately 70 files to the office.
[USCA5 154].
19. On or about August 31, 2004,
Appellant filed a report of back injury with
the Office of Workmen's Compensation.
[USCA 5 154].
20. On or about August 31, 2004,
Appeilant was placed on medical leave by
her physician and therapist due _ to
complications from medical conditions and
on-the-job stress. [USCA5 72-75].
21. On or about October 15, 2004,
Appellant was notified that her manager;
Mr. Gibson, had tried to get her injury claim
denied. [USCA5 2600-2601].
22. On or about December 1, 2004,
Mr. Gibson, sent certified letters’ to
Appellant stating that if she did not provide
additional medical information her approved
leave and any future leave would be noted as
AWOL. [USCA5 117,145].
1Q
23. On or about December 4, 2004,
another employee, under the supervision of
Mr. Gibson, stated in her EEO Declaration,
that in our Survey Feedback Session the
group pointed out approximately 30 negative
behavioral traits exhibited by Mr. Gibson.
Mr. Gibson stated that he was not aware of
any of his behavioral traits. She also stated
that all but one female Revenue Officer has
haa difficulty working with Mr. Gibson.
Female Revenue Officers are reluctant to
approach or talk with Mr. Gibson. [USCA5
2574].
24. On or about December 31, 2004,
Appellant received a request from Mr.
Gibson, for the diagnosis and prognosis of
her medical condition. [USCA5 878].
25. On March 1, 2005, Appellant
returned to her position as Revenue Officer
under the supervision of Mr. Gibson.
[USCA5 87].
26. On or about March 1, 2005, Mr.
Gibson, assigned former manager, Sue
Burton, as Appellant’s on-the-job instructor.
[USCA 101].
27. On or about March 1, 2005,
Appellant was placed on a Performance
Improvement Plan by Mr. Gibson. [USCA 5
87].
28. On or about March 1, 2005,
Appellant had her printer and phone card
removed. [USCA 5 117]
29. On May 17, 2005, the EEO Oral
Deposition of Appellant was conducted.
f[USCA5 1974-2017].
30. On or about May 18, 2005,
Appellant received a memorandum from Mr.
Gibson, stating that if she did not get actions
done on 17 cases that he wanted done in four
days she would be charged’ with
insubordination. [USCA5886]
81. On or about June 7, 2005,
Appellant’s Performance Improvement Plan
ended. [USCA 5 87]. The Performance
Improvement Plan consisted of 45 workdays,
from March 7, 2005 thru June 9, 2005.
During that period, Appellant performed the
following tasks: a. Appellant visited 65
taxpayers at their residences or places of
business; [Appellant’s travel vouchers are
proof of the visits conducted during the PIP]
b. Appellant reviewed over 400 e-mails
received while she was on sick leave; c.
Appellant received over 40 e-mails from her
manager and her on-the-job instructor
during the PIP; d. Appellant attended
scheduled group meetings; e. Appellant
attended meetings with her manager every
two weeks concerning the reviews he
conducted during the PIP; f. Appellant
prepared rebuttals to reviews; g. Appellant
wrote case histories on every taxpayer
contact, which normally resulted in several
12
—
pages of history; and h. Appellant performed
research on all her taxpayer files. [This
research is included in the ten volumes
submitted by the agency as evidenced in this
proceeding.| The research consisted of seven
volumes. [USCA5 438]
32. On July 6, 2005, Appellant was
instructed by Mr. Gibson, to drive to the
office of Martin Arnold, Territory Manager,
to receive her Proposed Removal Letter.
During this meeting Mr. Arnold stated to
Appellant that heenever had heard of Title 5,
USC Chapter 43. [USCA 5 109].
33. On July 6, 2005, Appellant was
advised by Mr. Gibson, and Mr. Arnold, to
perform clerical and forms room’s duties that
required heavy lifting until she was
terminated. [|USCA5 109, 450].
34. On July 8, 2005, during
Appellant’s EEO hearing, Mr. Attig, the
attorney for the agency, stated that Chapter
43 and Chapter 75 have nothing to do with
an appraisal. [USCA5 2345].
35. On or about July 31, 2005,
Appellant was given an appraisal for the
period July 1, 2004 thru June 30, 2005 with
a score of 1.4. Appellant was on sick leave
August 31, 2004 thru February 28, 2005.
|[USCA5 2574]
36. On August 26, 2005, Appellant
was terminated from her Revenue Officer
Position. [USCA5 109]. The removal letter
13
signed by Ellen Dolby was dated August 5,
2005 but not given to Appellant until August
24, 2005. The appraisal used for the
termination was for the period June 2003 to
July 2004. This means cases Appellant
received over 2 years prior to her
termination were used to terminate her.
This is illegal according to the Civil Service
Reform Act of 1978.
37. On or about August 27, 2005,
Appellant filed a complaint with the Merit
System Protection Board concerning her
removal. The agency stated the removal was
based on Appellant failing two of the three
sub-elements, timely actions and inventory
management under Critical Element V. The
removal was not based on one entire critical
element. [USCA5 110, 286].
38. On or about September 1, 2005,
Appellant received an SF 52, Personnel
Action, stating the legal authority for the
removal for her removal was Reg. 432.101
EQ. [USCA5 312]. Appellant never received
a SF 50 as required by agency regulations.
39. On January 26, 2006, Merit
System Protection Board Administrative
Judge, William Carnes, conducted a Pre-
hearing Conference Call with Appellant and
her attorney. [USCA5 461]. During this
Conference Call, Judge Carnes stated, “Why
don’t you just retire? They do not want you
there anymore.”
14
40. On or about February 13, 2006,
Judge Carnes stated that the prerequisites of
a Chapter 43 action would not be considered
in his decision. [USCA5 328].
41. On or about February 13, 2006,
at the MSPB hearing, Judge Carnes refused
to allow Petitioner to introduce a copy of the
Chapter 43 prerequisites into the hearing
record. He also refused to accept a copy of
the revised aspects dated May, 2002.
{USCA5 585].
42. On or about February 13, 2006,
Judge Carnes stated that the agency did not
have to use the entire critical element to
determine Appellant failed in timely actions
and inventory management. [USCA5 330-
357]. These were the revised aspects dated
May, 2002. [USCA5 2615-2616.] Two
different sets of tapes of the MSPB Hearings
held on February 13, and 14, 2006 exist.
Each set is different and gaps exist in the
tapes. One set was submitted by the MSPB
in Dallas, and the other set of tapes was
submitted by the court reporter. Both sets
are incomplete with gaps at different parts of
the testimony.
43. On or about February 13: or 14
2006, during the MSPB hearing, the
Territory Manager, Mr. Martin Arnold
admitted that he disagreed with Mr.
Gibson’s interpretation of Appellant’s work,
and that he had the ratings changed from
15
failing critical elements to marginally
meeting them. [Hearing Tape 3B, Counter
70-85]. Mr. Arnold stated during the MSPB
hearing that he may have terminated one
other person besides appellant from her
federal position but did not know the gender,
age, name or when or where this took place.
Mr. Gibson stated Appellant was the first
person he terminated from their federal
position. Mr. Arnold and Mr. Gibson stated
they were unaware of the two legal
processes, Chapter 43/75 to remove a federal
employee from service.
44. On or about May 26, 2006, Judge
Carnes, of the Merit System Protection
Board, stated Appellant was removed
according to 5 USC 7701(c)(A), 4303 and 5
CFR 432.102-106. His interpretation was
different from the agency’s interpretation.
[USCAS5 355].
45. On or about June 15, 2006,
Appellant decided to apply for her retirement
benefits. Appellant called the Office of
Personnel Management, and was told that
her retirement application and all of her
records from 1968 to the present had been
thrown out, because she was not entitled to
any benefits. Appellant contacted her U. S.
Representative to obtain assistance in
obtaining her retirement benefits. Six
months later, December, 2006, Appellant
received her lump sum retroactive benefits
16
from the date of her termination August 26,
2005, thru December, 2006. ‘The Office of
Personnel Management tried to reconstruct
Appellant’s wage record, but as of this date it
has not been corrected.
46. On or about September 26, 2006,
the Merit System Protection Board affirmed
the decision to remove Appellant. [USCA5
563].
47. Onor about September 28, 2006,
Appellant contacted her U. S. Representative
to help her receive $7,000 in overpaid health
insurance benefits. Six months later, on or
about March 1, 2007, petitioner received a
check for her overpaid benefits.
48. On or about August 21, 2007,
Appellant was notified that her 2005 1040
was under audit. The audit was closed six
months later with no change.
49. On or about September 4, 2007,
the Agency stated it did not give Appellant a
pre-termination hearing prior to her
termination. [USCA5 2602].
50. On or about September 4, 2007,
the Agency admitted the only way an
employee can be removed from their position
is by Chapter 43/75. [USCA5 2603].
51. On or about September 4, 2007,
the Agency admitted that the Appellant
should have received training on _ her
performance appraisal system. [USCA5
2604].
17
52. On or about September 4, 2007,
the Agency admitted that a Merit Systems
Protection Board Office of Policy and
Evaluation conducted a survey in 1995, and
stated that more than 5,700 federal
mnanagers and supervisors stated they do not
understand the two major processes
established by law to remove _ poor
performers, Chapter 43 and Chapter 75.
{USCA5 2604].
53. On or about September 4, 2007,
the Agency admitted it is very rare that an
aspect, within an element, not be rated.
[USCA5 2605].
54. On or about September 4, 2007,
the Agency admitted that 5 CFR Part
430.101, states that Chapter 43, of Title 5, of
the United States Code provides for the
performance appraisal of Federal Employees.
[USCA5 26041.
55. On or about September 4, 2007,
the Agency admitted Form 6774, Receipt of
Critical Job Elements for the period, July 1,
2003 thru June 30, 2004 was not signed by
Petitioner until February 19, 2004. This was
eight months late according to agency
regulations. [USCA5 2606].
56. On or about September 4, 2007,
the Agency admitted that an under forty
employee, under the same supervision as
Appellant, who was failing protection of the
18
Public Interest, received a bonus for 2004.
[USCAS5 2607}.
STATEMENT OF THE CASE
In Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U. S. 775 (1998), the Supreme
Court addressed the scope of the vicarious
lability of an employer’ for’ the
discriminatory and harassing conduct of its
supervisors in the context of Title VII of the
Civil Rights Act of 1964, 42 U. S. C. §2000e.
The Supreme Court held that an employer
shall be strictly liable to a _ victimized
employee for an actionable hostile work
environment created by a supervisor, when
the discrimination or harassment at issue
results in a tangible employment action.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S.
at 807. The concept of a_ tangible
employment action is distinct from that of a
materially adverse employment action,
which is a necessary element of a prima facie
case under Title VII. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 506-07 (1993).
Appellant filed her original complaint on
October 20, 2006 alleging violation of Title
VII of the Civil Rights Act based on age,
gender, retaliation, including hostile work
19
environment, wrongful termination, libel and
slander and negligent infliction of emotional!
distress [Docket #1].
On November 9, 2007, Appellee filed a
Motion for Summary Judgment on
Discrimination Claims and Non-
Discrimination Claims and a Motion to
Dismiss. [Docket #8].
On January 9, 2008, Appellant filed a
Response in Opposition to Defendant's
Motion for Summary Judgment and Motion
to Dismiss. In this response Appellant
withdrew her causes of action for libel and
slander and infliction of emotional distress,
but preserved her causes of action for
retahation, wrongful termination and
violation of rights guaranteed to her under
l’ederal Law. {Docket #22].
On September 29, 2008 Judge Ellison issued
the Memorandum and Order granting
Defendants Summary Judgment on
Discrimination and Non-Discrimination
Claims. [Docket #29]
The Final Judgment was issued October 2,
2008. [Docket #30}.
On October 24, 2008, Appellant filed a timely
Notice of Appeal. [Docket #31].
20
On May 12, 2009, The Fifth Circuit Court of
Appeals AFFIRMED the District Court’s
Decision.
a. On or about January 6, 1986 thru
1990 Appellant was a GS-7 and 9, working
GS 11 and 12 cases. She was paid a GS7 and
9-grade level salary. No other employees in
her group were being required to work above
their level of pay.
b. On or about September 13, 1988,
the manager, gave cases that were to be full-
paid within the next few days to a new male
Revenue Officer, so that Appellant would
not get credit for the closures.
c. On or about October 10, 1988,
management reported Appellant to the
Inspector General for allegedly stealing
government property. After a lengthy
investigation of Appellant, the matter was
dropped.
d. On or about October 17, 1988, the
manager counseled Appellant, as he did not
think that Appellant handled a_ suicide
threat made by a taxpayer correctly even
though all of the Standard Procedures set
out by the Internal Revenue Service were
followed.
e. QOn or about September 26, 1989,
the manager, told Appellant to turn over her
higher graded cases, on which she had done
2]
—
substantial work, to him because she would
never be promoted.
f. On or about September 27, 1989,
a manager’s wife was having an affair with a
male employee. The male employee was
stabbed by another individual in the love
triangle. Management told appellant if she
talked about the stabbing she would have
her appraisal lowered.
g. On or about November 2, 1989,
Appellant had her desk searched and dusted
for fingerprints by internal inspection and
ATF. On November 1, 1989, the IRS office
was set on fire. Five months later, with no
probable cause, appellant, one of her friends
and her union steward were subpoenaed for
fingerprints. Appellant was employed by two
other federal agencies prior to _ her
employment at Internal Revenue Service, so
her prints were already on file with the
federal government. After a four-year
investigation of Appellant the matter was
dropped.
h. On or about the period November
2, 1989 through 19938, the appellant was
continually called in to internal inspection
for interviews.
/ On or about December 27, 1989,
Appellant filed a grievance to get a GS 11
promotion. She finally received’ the
promotion in June, 1991. She became a
Revenue officer the same day as fifty other
employees and she was the only one not
promoted to a GS 11 in November 1988.
j. On or about March 11, 1990,
Appellant was informed she had cancer and
needed a hysterectomy. Before Appellant
was granted sick leave she had to explain to
management exactly why the hysterectomy
was needed.
k. On or about May 8, 1990,
Appellant was directed by management that
she was to spend 2 days a week in the field-
visiting taxpayers at their home or place of
business. This directive was meant for
Appellant only. |
:. On or about May 14, 1990,
management told Appellant that if she was
caught talking to fellow union stewards in
the hallway that it would be assumed that
she was talking union business and that she
would be charged with AWOL. Other
management and employees would be
enlisted to watch Appellant.
m. On or about May 15, 1990,
management reviewed some taxpayer files
and searched the file cabinet belonging to
Appellant during lunch. When Appellant
returned, the files were in complete disarray.
n. On or about May 16, 1990, other
employees, who worked in the division with
Appellant’s sister, came to Appellant and
wanted Appellant to comfort her sister who
was crying and in distress, because of the
23
manner that management was _ treating
Appellant.
O. On or about July 30, 1990, the
manager gave Appellant a_ counseling
session. The manager became _ very
hysterical during the session and threw
Appellant out of the office. That afternoon
the National Treasury Employees Union
assigned two GS 13 Union Representatives
to Appellant to make sure she was not
physically harmed.
p. On or about November 26, 1990,
after a meeting with IRS management,
Appellant was involved in a traffic accident
while traveling from the downtown IRS office
back to the Alhance office. When she
returned to the Alliance Office Appellant was
instructed by management to see a doctor at
her own expense. Management failed to
release Appellant’s sister from work so she
could accompany Appellant to the medical
appointment.
q. On or about June 30, 1992,
management at that time gave Appellant
notice to come to the office. While in his
office, the manager spoke to Appellant in a
derogatory manner and put her down
continually. It was hard for Appellant to get
her composure, and to perform her duties
after these sessions. The manager called the
Appellant to his office frequently, sometimes
several times a day. Appellant was being
24
harassed and used as an example for the
other employees, who knew about the
sessions and talked about Appellant.
Appellant visited the restroom several times
a day to vomit.
r. Starting with the year 1992 thru
Appellant’s termination date, management
used the appraisal for retaliation. They were
made very subjective without the use of the
prerequisites of Chapter 43. Labor
Relations Specialist and Respondent,
Stephanie Calister, stated Houston does not
prepare appraisals according to The Civil
Service Reform Act of 1978 or Title 5, U. S.
Code Chapter 43. She stated they follow
different laws.
Ss. On or about December 7, 1992, to
further embarrass Appellant the appraisal
was lowered and management informed the
Las Vegas IRS office that Appellant was not
eligible for a promotion to the Las Vegas
Office.
t. On or about December, 1992, thru
June, 1994, Appellant’s sister, also a
Revenue Officer, was harassed and forced to
take a lower graded position without the
Chapter 43 prerequisites.
u. On or about October 6, 1997,
management wanted to know if another
workable solution could be taken instead of
Appellant's evaluation being raised.
25
Vv. On or about June 15, 1998,
Congress established a separate entity called
Treasury Inspector General for Tax
Administration to replace IRS internal
investigation. This was done to try and
discourage IRS management from using the
inspection department as a tool for
retaliation against employees.
w. On or about March 1, 2005, the
agency requested the last ten years medical
records and tax returns on Appellant.
x. On July 6, 2005, Appellant was
advised by Mr. Gibson and Mr. Arnold to
perform clerical and forms room duties,
which required heavy lifting, until she was
terminated. Both were well aware Appellant
suffered a work related back injury in 2004.
1. PRIMA FACIE CASE OF SEX
DISCRIMINATION.
James Whaley, Senior Program Analyst and
Union Steward stated during the EEO
hearing that no man would have been
treated the way Appellant was treated at the
agency. [USCA5 2134, Page 229, Lines 12-
18]. Appellant has shown she was a member
of a protected class, she was qualified for the
position she sought if not for the illegal
preparation of the evaluation that caused
her termination and _ others’ simuarly
situated but outside the protected class were
26
treated more favorably. Mr. Gibson,
supervisor of Appellant, stated Appellant is
the first federal employee that he has
removed from federal service in his 20 years
of management.
2. PRIMA FACIE CASE OF AGE
DISCRIMINATION.
Retaliation against employees because they
oppose unlawful employment discrimination
is prohibited by the Age Discrimination in
Employment Act. The Supreme Court stated
in O’Connor v. Consolidated Coin Caters, 517
U. S. 308, (1996) that an older employee
need not prove that they were replaced by a
younger worker. An under age 40 employee,
under the same supervisor as Appellant, was
given an award after she failed a_sub-
element, but Appellant was removed from
her Federal position for the same alleged
offense. The Office of Personnel
Management is in charge of keeping
statistics on the number of employees
removed under Chapter 43 or 75. During the
year 2005, the same year that Appellant was
removed from her position, the Office of
Personnel Management, under Chapter 43,
shows 14 females under age 40 being
removed, while 103 females over the age of
40 had been removed. [USCA5 2604]. The
Office of -Personnel Management shows 27
27
males under the age of 40 being removed and
90 males over the age of 40 being removed
from their federal position. Appellant has
shown she was terminated, she was qualified
for the Revenue Officer position she held for
twenty years if not for the Ulegal preparation
of the performance evaluation that caused
her termination, she was within the
protected class at the time of her termination
and she does not need to prove she was
replaced by a younger worker. Appellant was
discharged because of her age. In November,
2003, just six weeks before retirement age of
55, Appellant was notified her work was
unacceptable.
3. PRIMA FACIE CASE OF SEXUAL
HARASSMENT
Appellant states she belonged to a protected
group; and was subjected to communication
si conduct on the basis of sex; [see item #23,
page 10}. All Female Revenue Officers
except for one, are reluctant to approach or
talk to Mr. Gibson [USCA5 2574]. In 2006,
less than a year after Appellant was
terminated, another female employee, over
the age of 40, under the same supervision as
Appellant, owas suddenly’ told her
performance was not acceptable and she
would be terminated. James, Whaley, Senior
Program Analyst and Union Steward, for
28
Appellant stated during the EEO hearing
that no man would have been treated the
way Appellant was treated at the agency.
[USCA5 2134, Page 229, Lines 12-18.]
Appellant was not subjected to unwelcome
sexual conduct or communication while Mr.
Gibson was her manager, but Appellant had
to witness inappropriate behavior by Mr.
Gibson in previous years as he conducted his
private life at work. His _ behavior
substantially interfered with Appellant’s
employment and created an intimidating,
hostile, and offensive work environment. All
the above actions took place within the scope
of employment.
The Supreme Court concluded that under
Title VII “[a] trier of fact may find sexual
harassment when “the harasser is motivated
by general hostility to the presence of women
in the workplace.” quoting Oncale ov.
Sundowner Offshore Services, Inc. 523 US
75, 80; 118 S. Ct. 998; 140 L Ed 2d 201
(1998).
“To be sure, the phrase “sexual harassment”
can be a misnomer. As several [federal]
circuits have now recognized, the touchstone
of an actionable sexual harassment claim is
not whether the offensive conduct includes
“sexual advances or other incidents with
clearly sexual overtones.” The critical inquiry
“is whether members of one sex are exposed
29
to disadvantageous terms or conditions of
employment to which members of the other
sex are not exposed.” Harris v. Forklift
Systems, Inc., 510 US 17, 25; 114 S. Ct. 367;
126 L Ed. 2d 295 (1998). Only by
acknowledging the link between sexual
conduct and gender-based inequality can the
sexual-harassment provision be rationally
applied. |
A supervisor may engage in unlawful
discrimination with the purpose, mistaken or
otherwise, to serve the employer. This is
where the employer has a_ policy of
discouraging women from seeking
advancement. Ellerth, 524 U. S. at 757.
The employer is liable for the tortuous acts of
its management when they are “aided in
accomplishing the tort by the existence of the
agency relation.” This has come to be known
as the “aided in the agency relation
standard.” Ellerth, 524 U. S. at 759. The
phrase “terms, conditions, or privileges of
employment” evinces a congressional intent
“to strike at the entire spectrum of disparate
treatment of men and women in
employment,” which include people to work
in a discriminatorily hostile or abusive
environment. Mr. Gibson, Appellant’s
supervisor, treated men and women under
his supervision disparately. After he
terminated Appellant in 2005, he
30
intimidated, ridiculed and insulted three
additional women under his supervision to
try and get them to retire. One over forty
female did retire under pressure. One over
forty female was dealing with mental health
issues and his treatment of her made her
condition worse.
The treatment Appellant suffered while
employed at the IRS caused her a tangible
psychological injury. While under the
supervision of Mr. Gibson and _ other
managers at IRS Appellant sought the
services of a mental health expert.
4. PRIMA FACIE CASE OF HOSTILE
WORK ENVIRONMENT.
The applicable standard is stated in Mentor
Savings Banc. V. Vinson, 477 U.S. 57. Title
VII is violated when the workplace is
permeated with discriminatory behavior that
is sufficiently severe. This stand requires an
objectively hostile or abusive environment.
It requires the type of environment that a
reasonable person would find hostile or
abusive, as well as the victim’s suggestive
perception that the government is abusive.
Harris v. Forklift Systems, Inc., 510 U.S. 21-
22 (1993). The Supreme Court has held that
an employer is liable for actionable hostile
environment sexual harassment by a
31
supervisor with immediate (or higher)
authority over the harassed employee. If the
supervisors harassment culminates in a
tangible employment action, such _ as
discharge, demotion, or undesirable
reassignment, the employer is liable and has
no affirmative’ defense. Burlington
Industries, Inc., v. Ellerth, 118 S. Ct. 2257
(1998) and Farragher v. City of Boca Raton.
In the twenty years Appellant was employed
by the IRS, six of her managers had
relationships with their employees while
Appellant was under their supervision.
In the Pollard case, the Supreme Court also
addresses the hostile environment caused by
employee relationships. Pollard v. E. I.
Dupont de Nemours & Co., 121 S. Ct. 1946
(Sup Ct. 2001). The work environment was
sufficiently hostile to constitute intentional
discrimination. The discrimination was
pervasive and regular and the defendants’
conduct detrimentally affected Appellant and
the defendants’ conduct was sufficiently
hostile to offend a reasonable _ person.
Appellant asked several members _ of
management __ to discontinue their
relationships with employees but was only
faced with more harassment and a lower
performance evaluation. Appellant also
raised her concerns to the Inspector General
but the Inspector General never addressed
the issue. The harassment was severe and
pervasive and lasted the entire twenty years
that Appellant was employed by the IRS.
5. PRIMA FACIE CASE OF
RETALIATION.
Retaliation against employees because they
oppose unlawful employment discrimination
is prohibited by Title VII of the Civil Rights
Act of 1964. In order to prove a retaliation
claim under Title VII, an individual must
demonstrate (1) a “protected activity” was
engaged in (that is, opposed discrimination
or participated in a _ discrimination
proceeding); (2) the alleged retaliator knew
of the protected activity; (3) the claimant was
subjected to an adverse employment action;
Under Burlington N. & Santa Fe Ry. Co. v.
White, 548 U. S. 53, 67-68 (2006) and
employee need not suffer an “adverse action”
to establish a prima facie case of retaliation,
but instead only must show that a
reasonable employee would have found the
challenged action “materially adverse.”
Meaning “it might well have dissuaded a
reasonable worker from ~“making _ or
supporting a charge of discrimination.”
(4) and a causal connection existed between
the protected activity and the adverse
employment action. Appellant has shown
33
she engaged in a protected activity, the IRS
took a materially adverse action against her,
such that it could dissuade a reasonable
worker from making or supporting a charge
of discrimination and that a _ causal
relationship existed between the protected
activity and the materially adverse activity.
In this case both opposition and participation
retaliation claims are involved.
Adverse actions that are the basis of a
retaliation claim are: (1) denial of promotion,
(2) refusal to hire, (3) denial of job benefits,
(4) demotion, suspension, (5) transfer to a
more difficult position, (6) threats, (7)
reprimands, (8) negative evaluations, and (9)
severe and pervasive harassment. Appellant
suffered denial of promotion, denial of job
benefits, transfer to a more difficult position,
threats, reprimands, negative evaluations
and severe and pervasive harassment. In his
EEO testimony on July 8, 2005, Alex
Hernandez, former manager of Appellant,
stated appraisals are used for retaliation.
[USCA5 2170, p. 375, Ln. 6-14] Adverse
actions continued after Appellant was
terminated. Her retirement records were
destroyed and her 2005 tax return was
subject to audit. Proof that the adverse
action was a result of engagement in
protected activity can be direct’ or
circumstantial. The circumstantial evidence
demonstrating that the protected activity,
34
and the adverse action, were linked,
frequently includes a showing that the
adverse action occurred shortly after the
protected activity. See Page 9, #15, 16 and
Page 13, # 31, 32, 33, 34 and 35. The
Supreme Court in Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53
(2006), also held that an employee could
bring a claim for retaliation based on conduct
that occurred years earlier, as long as the
employee alleges that it is part of a pattern
of retaliatory conduct. Appellant has sited a
pattern of retaliatory conduct. The Court of
Appeals for the 10t Circuit has held that a
negative evaluation leading to an employee’s
termination constitutes an adverse
employment action for retaliation purposes.
6. WHISTLEBLOWER RETALIATION
Appellant made protected disclosures that
she felt was a violation of law, rule or
regulation, or gross mismanagement, a gross
waste of funds, an abuse of authority, and a
substantial and specific danger to public
health or safety. citing USC 2302 (8)(A)(i)(ii)
and USC 2302 (8) (B)G)(Gji) Appellant
reported a fellow employee to Treasury
Inspector General for Tax Administration
because she believed the employee was
inflating his travel voucher. This happened
under the supervision of Mr. Gibson in
35
August 2004. Appellant reported to the
Inspector General the sexual relationships
between management and employees. This
disclosure to the Inspector General took
place in 1998. The management-employee
relationships existed at the time _ the
appellant staring working at IRS in 1985
and to her knowledge continued to 2004.
‘2 PRIMA FACIE CASE UNDER
MCDONNELL DOUGLAS TEST.
Appellant has shown that she was a
member of a protected class, she would have
been qualified for her position if not for the
illegal preparation of the evaluation that
caused her termination, she was terminated
on August 26, 2005 from her position, and
another simularly situated Revenue Officer
was treated more favorably. Rutherford uv.
Harris County, 197 F. 3d 173, 185 (5t» Cir,
1999).
8 A JURY SHOULD DECIDE THE
CREDIBILITY OF THE APPELLANT
AND THE DEFENDANT.
Credibility determinations, the weighing of
evidence, and the drawing of legitimate
inferences from the facts are jury functions,
not those of a judge. Reeves v. Sanderson
Plumbing Prods., Inc., 5380 U. S. 130, 150-51
36
(2000) (quoting Anderson, 477 U.S. at 250-
51).
9. THE CHAPTER 43 PREREQUISITES
OF THE CIVIL SERVICE REFORM ACT
ARE REQUIRED TO BE FOLLOWED BY
THE AGENCY TO CONDUCT A
PERFORMANCE EVALUATION.
The provisions of 5 U. S. C. Chapter 43
became law as part of the Civil Service
Reform Act of 1978, Pub. L. 95-454, 92 Stat.
1111, and were referred to as the
“centerpiece of civil service reform.” Thus,
the new provision was entitled “performance
appraisal.” A comprehensive summary of
Chapter 43 procedures can be found in
Lovshin v. Dept. of Navy, 767 F. 2d 826 (Fed
Cir 1985).
The IRS, MSPB and the court all disagree on
how Appellant was terminated from her
federal position. The IRS states Appellant
was removed according to the Internal
Revenue Manual. The MSPB found that
Appellant was removed according to 5 USC
7701(c)(1)(A) and 4303 and 5 CRF 432 102-
106 without making the proper analysis or
findings required by Civil Service Reform Act
of 1978, Chapter 43 or 75. 5 CFR 432.101
states the agency is to follow Chapter 43
prerequisites to conduct a_ performance
37
evaluation. The decision was not based on
substantial LEGAL evidence for Chapter 43
or preponderance of the evidence for Chapter
75 as required by the statute. The decision
violated Appellant’s due process rights, and
was in excess of Judge Carnes’ authority.
Judge Carnes told Appellant, “can’t you see
they don’t want you there anymore. Why
don’t you just retire?” The lower court did not
address the lack of substantial LEGAL
evidence, Chapter 43, and its prerequisites,
or the lack of preponderance of the evidence
under Chapter 75.
10. The difference between a critical
element, sub-element, aspect,
performance standards, progress
reviews and performance evaluations.
Critical Element — A critical element is a
work assignment or responsibility of such
importance that unacceptable performance
on that element would result in a
determination that an employee’s overall
performance is unacceptable. Appellant had
five critical elements. 1) Employee
Satisfaction-Contribute, 2) Customer
Satisfaction-Knowledge 3) Customer
Satisfaction-Application 4) Business Results-
Quality 5) Business Results-Efficiency
38
Sub-Element — There are 3 sub-elements
under each critical element. Critical Element
1: Workplace Interaction, Workplace
Involvement, and Workplace Environment.
Critical Element 2: Taxpayer Rights, Case
Analysis and Protection of the Public
Interest. Critical Element Critical Element
3: Responsive, Courteous Service,
Communication and Compliance Critical
Element 4: Investigation, Problem Solving
Techniques and Documentation. Critical
Element 5: ‘Timely Action, Inventory
Management and Planning and Scheduling.
The IRS determined that the appellant failed
to do timely actions on six taxpayer files,
sub-element of critical element 5, and that
resulted in ae failure of Inventory
Management on an additional six taxpayer
files which is sub-element 2 of critical
element 5. This caused her termination
after 20 years as a Revenue Officer.
Aspect — Defines how an_— employee
accomplishes her performance under the
sub-element to meet the critical element.
The sub-elements have from 2-10 aspects.
The aspects were never used to perform the
performance evaluation. Mr. Gibson stated
this fact during the MSPB hearing.
39
Performance Standards—Appellant’s
performance standards were Consistently,
Generally and More Than Occasionally.
Progress Reviews are conducted sporadically.
Performance Evaluations are conducted on
an annual basis.
REASONS FOR GRANTING THE
PETITION
Millions of federal employees depend
on the objective and accurate preparation of
the performance appraisal to determine their
rating for promotions, eligibility for a
performance award and ultimately the
amount of their monthly retirement. Many
federal employees who are close. to
retirement have been terminated based on
flimsy pretextual reasons when their
contract rights, due process rights, and
constitutional rights have been violated. The
subjective approach by the Respondents on
the preparation of the appraisal causes low
morale in the federal work force. This is a
ripe issue and affects thousands of Federal
employees today.
CONCLUSION
Appellant’s removal was conducted
without a pre-termination hearing, which
40
was a direct violation of the Fifth
Amendment. The core to due process is the
right to notice and a meaningful opportunity
to be heard, Cleveland Bd. Of Ed. V.
Loudermill, 470 U. S. 532, 542 (1985). An
individual’s right to due process is violated if
the agency does not follow the provisions of
the Civil Service Reform Act of 1978.
Appellant has the right to be free
from retaliation. The appraisal was used as
retaliation. This is a violation of the First
Amendment. It is also a violation of the
Fifth Amendment Due Process, Liberty and
Property Interest Rights.
For the reasons stated herein, the
Petition for Writ of Certiorari should be
granted. The Judgment and Opinion of the
United States Court of Appeals for the Fifth
Circuit should be reversed and this case
remanded for a trial.
Respectfully submitted,
/s/
Donna J. Arensdorf, Pro Se
10915 Prairie Hawk Dr.
Houston, Texas 77064
832-860-3544
APPENDIX A - OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT FILED MAY 12, 2009
IN THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
No. 08-20712
Summary Calendar
DONNA J ARENSDORF
Plaintiff-Appellant
v.
TIMOTHY F. GEITHNER, Secretary of the
Treasury
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06.cv.3324
Before HIGGINBOTHAM, BARKSDALE,
and ELROD, Circuit Judges.
PER CURIAM:
* Pursuant to 5“ Cir. R. 47.5, the court has
determined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5th Cir. R. 47.5.4
Appendix A
At issue are numerous claims by
Donna J. Arensdorf, a former Internal
Revenue Service (IRS) employee, against the
IRS, arising out of its termination of her
employment. Arensdorf appeals as adverse
summary judgment on all claims.
Arensdorf was employed as an IRS
revenue officer from October 1985 until
August 2005, ultimately reaching the GS -11
classification. Arensdorf received poor
performance reviews from her supervisor,
Gibson, on various evaluations in November
2003, and February and June _ 2004,
including overall performance ratings of
“unacceptable” on her mid-year progress
review and her’ annual performance
appraisal. In August 2004, she was given an
“Opportunity Letter” by Gibson. That letter
established a 90 day-day “Performance
Improvement fPeriod”, during which
Arensdorf was to improve her performance
(or face termination); identified specific
instances of Arensdorfs shortcomings,
including missed deadlines and omissions in
her case files; provided or referenced
applicable IRS standards for the deficiencies
identified; and described other resources that
she could use to improve performance.
The day after she _ received the
Opportunity Letter, Arensdorf began a six-
Appendix A
month sick leave. When Arensdorf returned
to work in March 2005, Gibson immediately
reissued the Opportunity Letter, giving her
an additional 90 days to improve her
performance; she was provided with an “On
the Job Instructor’, to assist with case
management; and her cases were reviewed
on a bi-weekly basis by Gibson and also, at
times, by Gibson’s supervisor. At the end of
the 90-day period, Arnold proposed
Arensdorfs termination; the area manager
approved Arnold’s proposal; and in August
2005, Arensdorf was terminated.
That month, Arensdorf filed a
complaint with the Merit System Protection
Board (MSPB), challenging her termination.
The MSPB sustained her termination.
Arensdorf appealed that decision to the full
board, and it was again sustained. She next
contested the MSPB’s decision in district
court.
There, Arensdorf urged claims for sex
and age discrimination, sexual harassment,
hostile work environment, and retaliation.
In addition to her discrimination-based
claims, she also urged severa! non-
discrimination-based claims, largely
consisting of challenges to the MSPB
decision and the means used to arrive at
that decision; and a retaliation claim under
Appendix A
the Whistleblower Protection Act, 5 U. S. C.
§2302. In September 2008, the district court
granted summary judgment to the IRS on all
claims.
Arensdorf presents ten issues for
review. These contentions essentially
challenge the summary judgment, which is
reviewed de novo. E.g., Gibson v. U. S.
Postal Serv., 380 F. 3d 886, 888 (5t) Cir
2004). “Summary judgment is appropriate
when, considering all of the allegations and
evidence, and drawing all inferences in the
light most favorable to the nonmoving party,
there is no genuine issue of material fact and
the moving party is entitled to judgment as a
matter of law.” Id. (citing Little v. Liquid Air
Corp., 37 F. 3d 1069, 1075 (5 Cir. 1994)).
Additionally, we may affirm the summary
judgment on any grounds supported by the
record. E.g., Berquist v. Washington Mut.
Bank, 500 F. 3d 344, 349 (5th Cir. 2007), cert.
denied 128 S. Ct. 1124 (2008).
In a “mixed case” appeal from the
MSPB_ (discrimination-based and _non-
discrimination-based claims),
“discrimination claims raised
administratively’ are reviewed de novo.
Aldrup v. Caldera, 274 F. 3d 282, 285-86 (5th
Cir. 2001) (citing 5 U. S. C. §7703(c)
(regarding judicial review of MSPB
Appendix A
decisions)). On the other hand, “non-
discrimination claims based on_ the
administrative record” are reviewed with
deference; we “will uphold the [MSPB]’s
determinations unless they are clearly
arbitrary and capricious, unsupported by
substantial evidence or otherwise not in
accordance with law”. Id. at 287.
Essentially for the reasons stated by the
district court in its comprehensive opinion,
the judgment is affirmed.
To establish a prima facie case of sex
discrimination under Title VII of the Civil
Rights Act of 1964, Arensdorf “was required
to show: (1) she is a member of a protected
class; (2) she was qualified for the position
she sought; (3) she suffered an adverse
employment action; and (4) others similarly
situated but outside the protected class were
treated more favorably”. Alvarado v. Texas
Rangers, 492 F. 3d 605, 611 (5% Cir. 2007)
(citing Willis v. Coca Cola Enters., Inc., 445
F. 3d 413, 420 (5 Cir. 2006)); see also 42 U.
S. C. § 2000e et. seq. Arensdorf fails to
establish a prima facie case of sex
discrimination because, inter alia, “she offers
no evidence that she was qualified for her
position”. Arensdorf v. Paulsen, No. 4:06-CV-
3324 (S. D. Tex 29 Sep 2008) (unpublished).
Appendix A
The record contains ample documentation of
her deficient job performance.
Arensdorf’s age discrimination claims
fails for essentially the same reason. To
establish a prima facie case of age
discrimination under the Age Discrimination
in Employment Act, Arensdorf was required
to show: “(1) [s]he was discharged; (2) [s]he
was qualified for the position; (3) [s]he was
within the protected class at the time of
discharge; and (4) [s]he was either i) replaced
by someone outside the protected class, ii)
replaced by someone younger, or iii)
otherwise discharged because of hjer] age”.
Baker v. Am. Airlines, Inc., 430 F. 3d 750,
753 (5t* Cir. 2005) (quoting Machinchick v.
PB Power, Inc., 398 F. 3d 345, 350 (5% Cir
2005)); see also 29 U. S. C. § 623 et seg.
Arensdorf fails to establish a prima facie
case of age discrimination because, inter alia,
she fails to show she is qualified for her
position.
Arensdorfs sexual-harassment and
hostile work-environment claims fail as well.
To establish a prima facie case of sexual
harassment under Title VII, Arensdorf was
required to show that: “(1)...[she] belongs to
a protected class; (2)... [she] was subject to
unwelcome sexual harassment; (3)... the
harassment was based on sex; and (4)... the
Appendix A
harassment affected a term, condition, or
privilege of employment”. Aryain v. Wal-
Mart Stores Tex. LP, 534 F. 3d 473, 479 (5%
Cir. 2008) (quoting Lauderdale v. Tex. Dep’
of Criminal Justice, Institutional Div., 512 F.
3d 157, 163 (5% Cir. 2007)). Similarly, to
establish a prima facie case of hostile-work
environment, Arensdorf was required to
show that: “(1) she belongs to a protected
class; (2) was subject to unwelcome sexual
lor racial] harassment; (3) the harassment
was based on her sex [or race]; (4) the
harassment affected a term, condition, or
privilege of her employment; and (5) [her
employer] knew or should have known of the
harassment and failed to take remedial
action”. Cain v. Blackwell, 246 F. 3d 758,
760 (5 Cir. 2001) (addressing a sexually-
hostile work environment); see also Ramsey
v. Henderson, 286 F. 3d 264, 268 (5th Cir.
2002) (addressing a racially-hostile work
environment). Arensdorf complains, inter
alia, of workplace teasing, ridicule, and
criticism. Even assuming Arensdorf satisfies
the other requirements for these claims, she
has not shown the severity of harassment
necessary to establish a prima facie case of
sexual harassment and a_ hostile-work
environment. See, e. g., Turner v. Baylor
Richardson Med. Ctr., 479 F. 3d 337, 348 (5t
Appendix A
Cir. 2007) (“simple teasing, offhand
comments, and isolated incidents, (unless
extremely serious) will not amount to
discriminatory charges that can survive
summary judgment.” (internal quotation
marks and citation omitted)).
To establish a prima facie case of
retaliation, the last of her discrimination-
based claims, Arensdorf was required to
“show that: (1) she participated in an activity
by Title VII; (2) her employer took an
adverse employment action against her; and
(3) a casual connection exists between the
protected activity and the materially adverse
action”. Aryain, 534 F. 3d at 484 (citing
McCoy v. City of Shreveport, 492 F. 3d 551,
557 (5 Cir. 2007)). The protected activity
cited by Arensdorf was her filing Equal
Employment Opportunity complaints
involving her supervisors in July and
September 2004, approximately one year
prior to her termination. Arensdorf provided
no evidence, other than her own assertions,
of the requisite causal connection. In any
event, even assuming Arensdorf has
established a prima facie case of retaliation,
the IRS met its shifted burden by
articulating a_ legitimate, non-retaliatory
reason (deficient job performance) for her
termination. See id. Accordingly, to avoid
Appendix A
summary judgment, Arensdorf was required
to show the IRS’ reason for terminating her
was pretext. See id. The record contains
substantial documentation of her deficient
performance.
Arensdorfs other claims concern
general-sufficiency-of-the-evidence and
genuine-issue-of-material-fact challenges;
the IRS’ claimed failure to comply with the
Civil Service Reform Act of 1978, Pub L. No.
95-454, 92 Stat. 1111 (codified in scattered
sections of 5 U.S. C.); the tapes of her MSPB
hearing containing “gaps”; and claimed
retaliation by the IRS, in violation of the
Whistleblower Protection Act, 5 U. S. C. §
2302.
None of these claims has merit. The
sufficiency-of-the-evidence and general-issue-
of-material fact challenges were essentially
addressed supra; Arensdorf did not meet her
burden with respect to the discrimination-
based claims, and the IRS provided ample
evidence of her deficient job performance.
Arensdorf’s claims based on the Civil
Service Reform Act essentially concern the
means used by the IRS to arrive at the
termination decision and by the MSPB to
review it. The MSPB addressed and rejected
these claims as they pertain to the IRS’
actions; and the district court conducted its
Appendix A
review using the appropriate, deferential
standard. See Aldrup, 274 F. 3d at 287;
Girling Health Care, Inc. v. Shalala, 85 F. 3d
211, 215 (5th Cir. 1996). The MSPB’s
decision affirming Arensdorf’s termination is
in accordance with the law and supported by
substantial evidence.
Arensdorf’s claims regarding
purported “gaps” in the tapes of the MSPB
hearing were reviewed by the district court;
it found the tapes to be complete. Arensdorf
has not shown clear error. E. g., Garcia uv.
LumaCorp, Inc., 429 F. 3d 549, 553 (5th Cir.
2005).
Finally Arensdorf devotes a few sentences to
the whistleblower retaliation claim without
citations to the record or case law.
Accordingly, this claim is waived as
inadequately briefed. E. g. Adams v. Unione
Mediterranea Di Sicurta, 364 F. 3d 646, 653
(54 Cir 2004) (“Issues not raised or
inadequately briefed on appeal are waived.”).
AFFIRMED.
1]
Appendix B
APPENDIX B - FINAL JUDGMENT
ISSUED BY THE UNITED STATES
DISTRICT COURT SOUTHERN
DISTRICT OF TEXAS, HOUSTON
DIVISION DATED OCTOBER 2, 2008
DONNA J. ARENSDORF
Plaintiff,
Vv. CIVIL ACTION
NO. 6-cv-03324
HENRY M. PAULSEN,
Secretary of the Treasury
Defendant.
FINAL JUDGMENT
Pursuant to FED. R. Civ. P. 58(a), and
for the reasons set forth in the Court’s
Memorandum and Order (Doc No. 29,
judgment is herby ENTERED for
Defendant.
Plaintiffs claims are DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this
the 2™ day of October, 2008
12
Exhibit B
s//
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
To ensure proper notice, each party who
receives this order shall forward a copy of it to every
other party axd affected non-party even though they
may have been sent one by the court..
13
APPENDIX C - MEMORANDUM AND
ORDER FILED BY THE DEFENDANT
IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON
DIVISION DATED SEPTEMBER 239,
2008.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DONNA ARENSDORF,
Plaintiff,
v. CIVIL ACTION
NO. -06-3324
HENRY M. PAULSEN, SECRETARY
OF THE TREASURY
Defendant
MEMORANDUM AND ORDER
Before the Court are Defendant’s
Motion for Summary Judgment’ on
Discrimination Claims (Doc No. 8), Motion
for Summary Judgment on Non-
Discrimination Claims (Doc No. 9), and
Motion to Dismiss (Doc No. 10). After
considering the parties’ filings and the
14
Appendix C
applicable law, the Court finds’ that
Defendant’s Motion for Summary Judgment
on Discrimination Claims and Motion for
Summery Judgment on Non-Discrimination
Claims should be granted. Defendant’s
Motion to Dismiss should be granted as
moot.
I. BACKGROUND
A. Plaintiff's Employment
History.
Plaintiff was employed as a revenue
officer tor the Internal Revenue Service from
October 15, 1985, until August 26, 2005,
ultimately reaching the GS-11 classification.
From May 2002 to August 2005, James(“Al”)
Gibson directly supervised Plaintiffs work.
On November 19, 2003, Gibson gave Plaintiff
a mid year progress review indicating that
she had an_- overall “unacceptable”
performance.
As a result of her failing performance<
Gibson recommended that Plaintiff remove
herself from the so-called Flexi-place
program. Removal from Flexi-place
indicates that an employee might need
additional guidance available in the office.
(Doc No. 8., Ex. 15.) On February 2, 2004,
15
Appendix C
and June 3, 2004, Gibson issued two Case
Review Narratives indicating that Plaintiff
was failing in a number of performance
areas. (Doc. 8., Ex. 16; Ex. 17.) On June 38,
2004, Gibson gave Plaintiff an
“unacceptable” rating in her Annual
Performance Appraisal. (Doc. No. 8, Ex. 21.)
On August 31, 2004, Gibson gave
plaintiff am “Opportunity Letter” explaining
that she had ninety days to improve her
performance or she should face termination.
(Doc. No. 8, Ex. 23.) The IRS terms this
interval the “Performance Improvement
Period” or PIP.” The Opportunity Letter
identified specific instances of Plaintiff's
shortcomings by listing missed deadlines and
omissions in her case files. It also provided
the IRS’s accepted standards for performing
certain tasks by referring to the Internal
Revenue Manual’s guidelines. Finally, the
letter described the resources Plaintiff could
use to improve her performance during the
PIP.
The day after she received the
Opportunity Letter, Plaintiff began a six-
month sick leave that lasted until March 1,
2005. When the Plaintiff returned to work,
Gibson immediately reissued the
Opportunity Letter, giving Plaintiff an
additional ninety days to improve her
16
Appendix C
performance. (Doc. No. 8, Ex. 24; Ex. 25.)
During the PIP, Plaintiff was given an On
the Job Instructor (“OIJ”), Sue Burton, who
could assist her in managing her cases.
Gibson, and at times his supervisor, Martin
Arnold, reviewed the Plaintiff's cases on a bi-
weekly basis during this period.
Following the end of the PIP, Arnold
informed the Plaintiff that he was proposing
her removal, (Doc. No. 8, Ex. 26.) Ellen
Dolby, the Area Manager, approved his
proposal, and on Augusi 26, 2005, Plaintiff
was terminated. (Doc. No. 8, Ex. 27.)
B. Plaintiffs EEOC and TIGTA
Activity
Plaintiff filed a number of grievances
throughout her career at the IRS and while
she was working for Gibson. In particular,
she filed Equal Employment Opportunity
(“EEO”) complaints on July 14, 2004 and
September 24, 2004. (Doc. No. 8, Ex. 1; Ex.
2.) Both complaints alleged that she suffered
from a hostile work environment, based on
her race and sex, because her transfer
request was denied. She alleged that both
Gibson and Arnold took part in the
discriminatox y treatment.
Plaintiff also filed grievances with the
Treasury Inspector General for ‘Tax
Administration (“TIGTA”) while she ws
17
Appendix C
working for Gibson, (Doc. No. 8, Ex. 28; Ex.
29.) On August 3, 2004, she reported that a
co-worker was inflating his travel vouchers.
Id. That same day, she filed another referral
claiming that Arnold and Gibson harassed
her and gave her poor evaluations on the
basis of her EEO complaints against them.
(Doc. 8, Ex. 30.) On October 3, 2004,
Plaintiff filed her final TIGTA grievance,
alleging that her manager was retaliating
against her for her recent EEO complaints.
(DOC. No. 8, Ex. 33.)
C. Procedural History
Plaintiff appealed her removal to the
Merit Systems Protection Board (““MSPB’”).
The MSPB sustained her removal in its
Initial Decision. (Doc. No. 8, Ex. 10.)
Plaintiff then appealed the Initial Decision to
the Full Board. The Full Board sustained
the Initial Decision and issued a Final
Decision. Jd. Plaintiff appealed to this
Court. Defendants moved for summary
judgment on Plaintiffs discrimination and
non-discrimination claims and moved to
dismiss Plaintiff's tort law claims.
II. SUMMARY JUDGMENT
STANDARD
18
Appendix C
A motion for summary judgment
under Federal Rule of Civil Procedure 56
requires the Court to determine whether the
moving party is entitled to judgment as a
matter of law based on the evidence thus far
presented. FED. R. CIV. P.56(c). Summary
judgment is proper “if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to judgment
as a matter of law.” Kee v. City of Rowlett,
247 F. 3d. 206, 210 ( Cir. 2001) (quotations
omitted). A genuine issue of material fact
exists if a reasonable jury could enter a
verdict for the non-moving party. Sce
Anderson v. Liberty Lobby, Inc., 477 U. S.
242, 252 (1986) (“The existence of a scintilla
of evidence in support of the plaintiffs
position will be insufficient; there must be
evidence on which the jury could reasonably
find for the plaintiff”); Crawford v. Formosa
Plastics Corp., 234 F. 3d 899, 902 (5 Cir.
2000). The Court views all evidence in the
light most favorable to the non-moving party
and draws all reascnable inferences in that
party’s favor. Crawford, 234 F. 3d at 902.
“Credibility determinations, the weighing of
evidence, and the drawing of legitimate
19
Appendix C
inferences from the facts are jury functions,
not those of a judge,” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U. S. 180, 150-51
(2000) (quoting Anderson, 477 U. S. at 250-
51).
* In July 2005, Plaintiff filed Complaint H-05-cv-2622
in the Southern District of Texas, complaining of a
hostile work environment. In that matter the court
granted Defendant’s request for summary judgment.
Plaintiffs appeal of that decision is pending before the
Fifth Circuit of Appeals.
Ill. PLAINTIFF’S DISCRIMINATION
CLAIMS
A. Sex Discrimination Claim
Plaintiff claims that she was
discriminated against on the basis of sex in
violation of Title VII of the Civil Rights Act
of 1964, 42 U.S. C. §§ 2000c-2000e-17. “Title
VII prohibits employers from discriminating
against employees on the basis of race, color,
religion, sex, or national origin.” Grimes uv.
Texas Dep't of Mental Health, 102 F. 3d 137,
140 (5% Cir. 1996). Title VII claims are
subject to the burden-shifting framework
established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U. S.
792 (19783).
20
Appendix C
To satisfy the McDonnell test, a
plaintiff must first establish a prima facie
case of discrimination. To do that, she must
“demonstrate that (1) she is a member of a
protected class, (2) she was qualified for her
position, (3) she suffered an adverse
employment action, and (4) others similarly
situated were more favorably treated.”
Rutherford v. Harris County, 197 F. 3d 173,
185 (5 Cir. 1999). The burden then shifts to
defendant to articulate a_ legitimate,
nondiscriminatory reason for the
employment action. McDonnel Douglas,
411 U. S. at 802; Urbano v. Continental
Airlines, Inc. 138 F. 3d 204, 206 (5th C8r.
1998), cert. denied. 525 U.S. 1000 (1998).
In the instant case, Plaintiff fails to
present a prima facie case of sex
discrimination, because she offers no
evidence that she was qualified for the
position. Defendant’s records indicate that
plaintiff had a failing job performance
beginning in November 2003, and Plaintiff
herself admits that she received poor ratings
from supervisors at different times
throughout her career. (Doc. No. 8, Ex. 38,
at 91:8-15.) Sue Burton, Plaintiffs OJlI,
testified at the MSPB hearing that she
identified many areas where Plaintiff was
struggling in her work, but Plaintiff refused
21
a
Appendix C
to accept assistance. (Doc. No. 8, Ex. 10.)
Plaintiff argues that her job evajuations
were conducted using out-dated, subjective
standards that unfairly applied to her work.
(Doc. No. 8, Ex. 38, at 43-44.)
Plaintiffs employment history, and
Sue Burton’s testimony, are persuasive
evidence that the Plaintiff was not qualified
for her position. The standards used to
evaluate Plaintiff in her performance
appraisals, and the standards presented to
her in the Opportunity Letter, make
frequent reference to the Internal Revenue
Manual (“IRM”). The IRM is the operating
manual for revenue officers, and it contains
specific guidelines and timeframes for
performing certain tasks. It is evident in
reviewing Plaintiff's employment record that
she did not complete certain tasks in the
time required. Plaintiff testified that she did
not believe these standards were correct;
however, the MSPB determined that the
standards are correct and were made
available to the Plaintiff on _ several
occasions. (Doc. No 8, Ex. 10.) Plaintiff
offers no evidence to contradict the MSPB’s
determination.
The Court is hesitant to decide the
case on these grounds alone, however,
because objective standards can be applied to
22
Appendix C
different employees with varying levels of
rigidity. Nevertheless, Plaintiff still fails to
demonstrate a prima facie case of sex
discrimination because she offers no evidence
that similarly situated male employees were
treated more favorably. Plaintiff never
makes any specific allegation of
discrimination on the basis of her sex.
Plaintiff does assert that everyone in her
revenue officer class received a GS-11 rating
before her, but she presumably means that
beth the males and the females received
promotions before her. (Doc. No. 8, Ex. 34, v.
6, tab 4n2-2).
In her affidavit to the Court, Plaintiff
states:
“On December 8, 2004, Karen Ytuarte,
another employee in Gibson’s group, stated
in her EEO Declaration, that in our Survey
Feedback Session the group pointed out
approximately thirty negative behavioral
traits exhibited by Mr. Gibson. She also
stated that all but one female revenue
officers has had uifficulty working with Mr.
Gibson. Female revenue officers are
reluctant to approach or talk with Mr.
Gibson.”
(Doc. No. 8, Ex. 22, at 4.) Such
allegations, if substantiated, would be prima
23
Appendix C
facie evidence of discrimination. Plaintiff
does not present any documents or testimony
supporting this statement, however,
rendering it naked hearsay. Statements used
to refute summary judgment must be
admissible at trial. FED R. CIV. P. 569e)(1);
McIntosh v. Partridge, 540 F. 3d 315, 322 (5th
Cir 2008). Significantly, Plaintiff does not
allege that she experienced any of this
treatment herself; she can only base a claim
on discrimination that she experienced
personally. Septimus vu. University of
Houston, 399 F. 3d 601, 612 (5 Cir. 2005).
Finally, at the Plaintiffs EEO hearing
on July 8, 2005, James A. Whaley, the
Plaintiffs union steward, testified about the
source of the Plaintiffs problems with
management:
“I think partially because she was a
woman because of the fact that they didn’t do
that-they would never have done that to her
is she had been a man. They expected the
women to be a lot more submissive; and
obviously if a man was assertive, they didn’t
seem to have a problem with a man standing
up to them as they did with females.”
(Doc. No. 8 Ex. 38, 229: 12-20.) If this
statement were corroborated, it would also
be prima facie evidence of discrimination.
24
Appendix C
Such unsupported speculation, however, is
not competent summary judgment evidence.
See, e. g. Eason v. Thaler, 73 F. 3d 1322, (5th
Cir 1996). Accordingly Plaintiff fails to
present a prima facie case of sex
discrimination.
B. Age Discrimination
Plaintiff also alleges that she was
discriminated against on the basis of her age.
Under the Age Discrinimation in
Employment Act (“ADEA’). “[iJt shall be
unlawful for an employer. . . to discharge any
individual or otherwise discriminate against
any individual with respect to _ his
compensation, terms, conditions, or
privileges of employment because of such
individual’s age.” 29 U. S. C. § 623(a)(1).
“When a plaintiff alleges disparate
treatment, liability depends on whether the
protected trait (under the ADEA, age)
actually motivated the employer’s decision.”
Reeves v. Sanderson Plumbing Prods., Inc.
530 U.S. 133, 131 (2000).
To prove age discrimination a
“plaintiff must show that (l){she] was
discharged; (2) [she] was qualified for the
position; (3) [she] was within the protected at
the time of the discharge; and (4) [she] was
either 1) replaced by someone outside the
25
Appendix C
protected class, ii) replaced by someone
younger, or ili) otherwise discharged because
of [her} age.” Palasota v. Haggar Clothing
Co., 342 F. 3d 569, 576 (5 Cir. 2003)
(quoting Bodenheimer v. PPG Indus. Inc., 5
F. 3d 955, 957 (5t Cir. 1993)).
Once again, because the Plaintiff does
not show that she was qualified for her job,
she cannot satisfy the required criteria.
Additionally, Plaintiff presents no evidence
that she was replaced with a younger officer
or that younger employees received
preferential treatment. Plaintiff does assert
that, “on May 23, 2007, Office of Personnel
Management sent me an email stating that
of the 231 employees removed under Ch. 43
for the year 2005, one hundred and ninety
three were over the age of forty.” Plaintiff
provides no documents to support this
evidence, and draws’ no_- conclusions
demonstrating systematic discrimination.
Such a_ generalized allegation does not
establish a prima facie case of age
discrimination. Such a_ generalized
allegation does not establish a prima facie
case of age discrimination. Septimus, 399 F.
3d at 611.
C. Sexual Harassment and Hostile
Work Environment
26
Appendix C
Plaintiff also alleges she suffered from
sexual harassment and a hostile work
environment In order to establish a prima
facie case of sexual harassment, Plaintiff
must show that “1) she belongs to a protected
class; 2) she was subjected to unwelcome
sexual harassment; 3) the harassment was
based on sex; 4) the harassment affected a
term, condition or privilege of employment;
and 5) the employer knew or should have
known of the harassment and failed to take
remedial action. Septimus, 399 F. 3d at 611.
To make a claim for a hostile work
environment under Title VII, the alleged
harassment must be “sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.” Ramsey v.
Henderson, 286 F. 3d 264, 268 (5t® Cir. 2002).
Plaintiff must subjectively perceive the
harassment as_ sufficiently severe or
pervasive, and this subjective perception
must be objectively reasonable. Harris v.
Forklift Sys., Inc., 510 U. S. 17 (1998).
The Plaintiff describes her working
relationship with Gibson:
I was belittled, degraded, demeaned,
ridiculed, and subjected to disparaging
remarks. I was threatened with low
27
Appendix C
appraisals, shouted at and _ humiliated,
especially in front of other employees. I was
taunted and teased with the intention to
embarrass and humiliate me. Mr. Gibson
deliberately set unrealistic goals and
deadlines for me, which were unachievable,
and which were changed without notice or
reason, or whenever it appeared to him that
I was close to achieving them. Other
employees were not required to achieve such
high standards.
‘Doc. No. 22, at 4) To support her
claim, Plaintiff claims that Gibson unfairly
took her phone card and her printer after she
was removed from the Flex:-place program.
(Doc. No. 8, Ex. 38, at 113: 2-21). Later, she
alleges that he made an insulting comment
to her regarding her level of work experience,
and that she once saw him gossiping about
her with other employees. (Doc. No 8. Ex. 38,
at 102: 1-5). Finally, Plaintiff claims Sue
Burton, her OJI, treated her poorly. (Doc. No
8, Ex. 38, at 118: 17-20).
Assuming that these allegations are
all true, the Plaintiffs perception that they
amount to sexual harassment or a hostile
work environment is not’ objectively
reasonable. Losing one’s computer, or
receiving criticism from a _ superior, is
certainly an unpleasant experience for an
28
Appendix C
employee, but is not the type of action that
Title VII was intended to prohibit. As to
Plaintiffs allegations that Mr. Gibson
insulted her on a few occasions, these
isolated events do not reach the level of
‘harassment” envisioned by Title’ VII.
“Simple teasing, offhand comments, and
isolated incidents (unless extremely serious)
will not amount in discriminatory changes in
the “terms and conditions of unemployment.”
Clark County School District v. Breeden, 532
U. S. 268, 271 (2001) (quoting Faragher uv.
Boca Ratgon, 524 U. S. 775, 788 (1998)).
In Septimus, the plaintiff alleged that
she ws subject to a two hour :harangue in
her office by her male manager which
“frightened her and made her feel useless
and incompetent.” 399 F. 3d at 612. Her
manager also questioned her about a
presentation in a “mocking tone” and told
her that she was “like a needy old girlfriend.”
Id. The Fifth Circuit found this behavior,
which is arguably more offensive than that
alleged here, was not :harassment” with the
context of Title VII. Plointiff unquestionably
experienced great unhappiness at her office;
this is not sufficient. However, to establish a
prima facie case of sexual harassment and a
hostile work environment..
D. Retaliation
29
Appendix C
Plaintiff also alleges that she suffered
retaliation based on her EEO complaints
against Gibson and Arnold. A plaintiff may
establish a prima facie case of unlawful
retaliation by demonstrating; “1)[she]
engaged in protected activity, 2) [she]
suffered and adverse employment decision,
and 3) a casusal link exists between the
protected activity and the adverse
employment decision,” Medina v. Ramsey
Steel Co., Inc., 238 F. 3d 674, 684, (5t Cir.
2001). To establish a causal link, an
employee “should demonstrate that the
employer knew about the employee's
protected activity.” Manning v. Chevron
Chem. Co., 332 F. 3d 874, 883 (5t Cir 2003).
If a plaintiff makes a prima facie case, the
burden shifts to the defendant to offer a
legitimate reason for the employment
decision. If the defendant makes such a
showing, the burden shifts back to the
plaintiff to show that the articulated reason
was a pretext for retaliation. To
demonstrate pretext, a plaintiff must show
that the adverse employment action would
not have occurred but for his protected
conduct. See Septimus, 399 F. 3d at 608.
The parties agree that plaintiff
engaged in protected activity and that she
suffered an adverse decision. The issue is
30
Appendix C
whether there was a “causal link” between
her protected activity and the adverse
employment decision. The issue 1s whether
there was a “causal link” between her
protected activity and the adverse
employment action. The “causal link”
required in prong three of the prima facie
case for retaliation is not as stringent as the
“but for” standard.” Evans v. City of
Houston, 246 F. 3d 344, 354 (5th Cir 2001)
(citing Long v. Eastfield College, 88 F. 3d
300, 305 (5th Cir 1996)). Determining the
causal link is “highly fact specific,” and the
court can look at the employee’s past
disciplinary record, whether the employer
followed typically policy and procedure in
terminating the employee, and the temporal
relationship between the employee’s conduct
and discharge. See Nowlin v. Resolution
Trust Corp., 33 F. 3d 498, 508 (5 Cir 1994).
Plaintiff offers no evidence, other than
her own assertions, linking her activity and
the adverse employment action. We
therefore assume that her case is based on
the temporal connection between’ the
protected activity and the adverse
employment action. The Fifth Circuit has
held that a five-month lapse between the
protected activity and the alleged retaliatory
31
Appendix C
act, without more, cannot establish a causal
link. Raggs v. Mississippi Power & Light Co.,
278 F.3d 468, 471-72 (5th Cir. 2002).
Plaintiff engaged in “protected
activity” by filing EEO complaints in July
2004 and again in September 2004.
Defendant argues that, since Plaintiff was
not terminated until August 25, 2005, there
is no temporal connection between her
protected activity and the adverse
employment action.’ This argument
overlooks the fact that the Opportunity
Letter was issued on August 31, 2004, just
over a month after the Plaintiffs first EEO
complaint. Issuing an Opportunity Letter to
the Plaintiff, which effectively put her on
probation and thus changed the terms of her
employment, could be considered an adverse
employment action itself. See Evans, 246 F.
3d at 353 , (quoting Burlington Indus., Inc.,
vu. Ellerth, 524 U. S. 742, 761 (1998)). If so,
the temporal proximity of those two events
becomes much more probative.
* Defendants also assert that Ms. Dolby, the deciding
official, was not aware of the plaintiffs protected
activity. This fact is not highly prohibitive given that
Ms. Dolby was simply reviewing the decision of Mr.
Arnold, who was the subject of the Plaintiffs EEO
activity.
32
Appendix C
We do not have to reach the issue of
temporal proximity, however, because
Plaintiffs poor performance record is
determinative. Before she filed her first
EEO complaint, she had already received
three failing evaluations from Gibson. Filing
an EEO complaint does not allow an
employee to escape her own _ poor
performance record. See Raggs, 278 F. 3d at
471. ‘Title VII does not prevent employers
from completing adverse employment actions
that are in progress when the EEO
complaint is filed. Clark, 532 U.S. at 275.
Plaintiff has mot met the burden of
establishing a prima facie case _ of
discrimination.
III.
PLAINTIFF’S NON-DISCRIMINATION
CLAIMS
A. Standard of Review for Non-
Discrimination Claims.
In reviewing the Plaintiffs non-
discrimination claims, we are limited to the
MSPB’s record. This Court may set aside
the MSPB’s decision only if it is: (1)
arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2)
33
obtained without procedures required by
law, rule or regulation having been followed;
or (3) unsupported by substantial evidence.
5 U.S. C. § 706; Girling Health Care, Inc. v.
Shalala, 85 F. 3d 211, 214 (5t Cir. 1996).
Substantial evidence is defined as “more
than a scintilla; it means such relevant
evidence as a reasonable mind might accept
as adequate to support a_ conclusion.”
Girling, 85 F. 3d 211 at 215, (quoting
Richardson v. Perales, 402 U. S. 389, 401
(1971)). Where the Court’s review is
confined to the administrative record,
“{jJudicial review has the function of
determining whether the administrative
action is consistent with the law-that and not
more.” Girling, 85 F. 3d 211 at 215.
B. THE MSPB’s Decision Regarding
Plaintiff's Termination Is Supported By
Substantial Evidence.
The MSPB had before it, as the Court
now has, a voluminous record describing the
Plaintiffs employment history.’ As has been
previously discussed, Plaintiff was warned
about the quality of her work, and the
possibility of termination, as early as
November 2003. She received numerous
negative performance reviews following this
initial warning, and she admitted herself
that she had received failing performance
34
Appendix C
reviews at various times throughout her
career.
In addition to Plaintiffs employment
record, the MSPB had the benefit of hearing
testimony from not only Plaintiff and Gibson,
but a'so Sue Burton, the Plaintiff's OJI. The
MSPB found her testimony credible: she
testified regarding the Plaintiffs low level of
competence and her refusal to receive
assistance. (Doc. No. 8, Ex. 10.) The only
evidence Plaintiff presented to contradict her
record and Ms. Burton’s testimony was her
own regarding her abilities as a revenue
officer. Jd.
* Plaintiff argues that the MSPB record that
was delivered to this Court is not complete
because there are gaps in the hearing tapes.
The Court has reviewed the hearing tapes and
found them to be complete. ‘ Plaintiff contends
that the MSPB’s decision is not in compliance
with the law because the MSPB did not review
the agency’s performance standards. This
argument has no merit. The MSPB, in its initial
decision, began its discussion by reviewing the
agency’s standards and noting that they had
been approved by Office of Pevsonnel
Management in 1986. (Doc. No. 8, Ex. 10.) The
MSPB goes on to say that not only were these
standards approved, but they were made
available to the Plaintiff on several occasions.
Id.
35
Appendix C
We must give great deference to the
MSPB’s review of the facts. Girling, 85 F. 3d
211, at 215. The MSPB’s decision affirming
Plaintiffs termination is in accordance with
the law‘ and supported by substantial
evidence.
C. The MSPB’s Decision Regarding
Plaintiffs Whistleblower Claim is
Supported by Substantial Evidence.
Plaintiff also claims that her
termination was reprisal resulting from her
actions protected under the Whistleblower
Protection Act (“WPA”) 5 U. S. C. §
2302(b)(8). Under the WPA, employers
cannot take personnel actions as a result of
any disclosure by an employee that the
employee reasonably believes evidences a
violation of law, rule or regulation, or
evidences gross mismanagement, a_ gross
waste of funds, and abuse of authority, or a
substantial and specific danger to public
health or safety. Watson v. Department of
Justice, 64 F. 3d 1524, 1527 (Fed. Cir. 1995).
To establish a prima facie case under the
WPA, a plaintiff must prove by a
preponderance of evidence that: (1) she made
a protected disclosure; (2) subsequent to the
36
Appendix C
disclosure she was subject to disciplinary
action; and (3) the disclosure was a
contributing factor to the personnel action
taken against her. Carr v. Social Security
Admin., 185 F. 3d 1318, 1322 (Fed. Cir.
1999). A critical element of the prima facie
case is evidence that the accused decision-
making official knew of the plaintiffs
disclosure. See, e. g. Stanek v. Department of
Transp., 805 F. 2d 1572, 1580 (Fed Cir.
1986).
Plaintiff alleges that she engaged in
two protected actions protected by the WPA:
first, her Congressional testimony in 1998,
and second, her TIGTA claim regarding
another revenue officer's abuse of travel
vouchers. (Doc. No. 8, Ex. 10.) As to the
Congressional testimony, Plaintiff admitted
that she never actually testified before
Congress and that she had never informed
any of her current managers that she had
planned to do so. Jd. The MSPB found
credible Gibson, Arnold, and _ Dolby’s
testimony confirming that they never knew
Plaintiff planned to testify before Congress.
This activity, therefore, is not casually
connected to Plaintiffs termination.
As to the TIGTA claim, Plaintiff
concedes that she never told her managers
37
Appendix C
that she reported her co-workers abuse of the
travel vouchers.® Jd. Once again, the MSPB
found credible the managers’ testimony that
they did not know Plaintiff was the one who
filed the TIGTA grievance. Plaintiff has
failed to establish a prima facie case that she
engaged in protected activity that was
casually connected to her term1..ation; her
WPA claim is therefore denied.
® In reviewing the record, this Court did find one
email in which the Plaintiff informed Gibson that she
was meeting with TIGTA on August 3, 2004. (Doc. No
8, Ex. 34, v. 2 tab 4d 110.) Plaintiff did not tell Gibson
what she intended to discus with TIGTA, however, so
it is reasonable to conclude that this email did not put
him on notice that Plaintiff made the complaint about
the travel vouchers. Neither party discusses this
email in their filings.
38
Exhibit C
V. CONCLUSION
Defendant’s Motion for Summary Judgment
on Discrimination Claims and Motion for
Summary Judgment on Non-Discrimination
Claims are GRANTED. Defendant moved
to dismiss Plaintiffs claims for libel, slander,
defamation, and intention infliction of
emotional distress. (Doc. No. 10). Plaintiff
withdrew these claims in her response. (Doc
No. 23.) Defendant’s Motion to Dismiss is
therefore DENIED AS MOOT.
IT ISSO ORDERED.
SIGNED this 29t day of September,
2008.
s//
KEITH P. ELLISON
UNITED STATES
DISTRICT JUDGE
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