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Mogenhan v. Chertoff

September 17, 2008

ANN MARIE MOGENHAN, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY DEPARTMENT OF HOMELAND SECURITY DEFENDANT.



The opinion of the court was delivered by: Jack D. Shanstrom Senior United States District Judge

ORDER

MEMORANDUM OPINION

Plaintiff Ann Marie Mogenhan (Plaintiff) initiated the above-captioned lawsuit on the basis that she was discriminated against due to her gender and disability. This matter comes before the Court on Defendant Michael Chertoff, Secretary of Department of Homeland Security's (Defendant), Motion for Summary Judgment*fn1 . On April 29, 2008, the Court held a hearing and heard arguments from the parties. After the hearing, the Court deemed the matter fully submitted and is prepared to rule.

I. FACTS

In September 1990, Plaintiff, a white female, became employed by the Department of Homeland Security, formerly the United States Secret Service (USSS), as a Management Analyst (GS-343-9). She was employed by the USSS until 1994. Complt. ¶ 8. She alleges that she has been subjected to sex discrimination and retaliation in violation of the Title VII of the Civil Rights Act of 1964, and that she was discriminated against for engaging in Equal Employment Opportunity activities. Amended Complaint (Complt.) ¶¶ 3, 32. Further, Plaintiff amended her original complaint to include claims under the American's with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Complt. ¶ 4.

Prior to her employment at USSS, Plaintiff worked at the Social Security Administration (SSA). While at SSA, she claimed she developed heat triggered migraine headaches as a result of her working environment (Defendant's Statement of Material Facts not in Genuine Dispute (SMF) ¶ 33). Plaintiff filed an injury claim at the Office of Workers Compensation Programs (OWCP) and was then able to seek reimbursement for any sick leave. Id. at 34-36. While employed at the USSS, she continued to submit claims to OWCP. Id. at 37.

Plaintiff claims to have experienced heat triggered migraine headaches since March of 1985. See Record of Investigation p. 85. Plaintiff treats her migraines with medication and bio-feedback. Id. Plaintiff generally alleges that the conditions in her USSS work area were too hot and had poor ventilation which triggered her migraine headaches. Complt. ¶ 17. Plaintiff also alleges that the USSS failed to reasonably accommodate her. Id. (See also Plaintiff's Statement of Disputed Material Facts (PSDMF) ¶ 22-35).

In addition, Plaintiff alleges that she was discriminated against on the basis of her gender.

Complt. ¶ 22. Plaintiff points to certain performance appraisals which she claims were lower as a result of her EEO Complaint and her gender. Complt. ¶¶ 29-31. In 1991, Plaintiff received 300 out of 400 on her appraisal and was classified as "Exceeds Fully Successful." SMF ¶ 3. In Plaintiff's subsequent appraisals she received a 270 and 280 out of 400, all classified as "Fully Successful". Id. at ¶¶ 17, 31. In 1992, she received a 3 ("Exceeds Fully Successful") on all performance elements except for "interpersonal relationships" on which she received a 1 ("Minimally successful"). Id. at ¶ 32. Plaintiff also makes several general allegations of mistreatment against her by her supervisor Mr. John Machado (Machado).

Plaintiff alleges that out of the six employees evaluated by Machado, females generally received the lowest score. PSDMF ¶ 71. Plaintiff also points out that she was never written up, received any reprimands, nor had any disciplinary actions taken against her*fn2 . PSDMF ¶78.

Plaintiff sought EEO counseling on January 14, 1992 and August 7, 1992 alleging that she was discriminated against by the USSS. See Findings and Conclusions, (EEOC No.s 033-93-5978X and 033-93-5979X), Equal Employment Opportunity Commission (EEOC), Kathryn Brown, Administrative Judge p. 1. On February 28, 1992 and September 14, 1992 Plaintiff filed two formal complaints alleging discrimination with the EEOC. Id. A hearing was held in front of the EEOC on September 13, 14 , 1994 and October 24, 25, 1994. Id. After the hearing, the Administrative Law Judge issued an opinion finding that the Treasury Department did not discriminate against the Plaintiff. Id. at 13. The Department of the Treasury (DOT) issued a final decision which found insufficient evidence to support Plaintiff's claims. Plaintiff appealed the DOT decision and the EEOC ultimately affirmed it in 1997. Plaintiff filed the instant lawsuit in Federal Court on March 9, 1998. Plaintiff makes the following allegations as stated in her Amended Complaint:

1. Defendant failed to grant her a reasonable accommodation for her disability;

2. Defendant discriminated against her on the basis of her disability and gender, when they issued her a lower performance appraisal for the rating period of October 1991-December 1991;

3. She was discriminated against on the basis of her gender, disability and retaliation when she received a lower performance appraisal in July 1992; and

4. She was subject to a hostile work environment based on her gender, disability and retaliation.

See Amended Complaint Counts I, II, III, and IV. Upon consideration of the entire record herein, and for the reasons set forth below, Defendant's ...


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