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Thompson v. Chao

May 27, 2009


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge



This is an employment discrimination action brought by Barbara Thompson against her former employer, the United States Department of Labor ("DOL"). Ms. Thompson asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("the ADEA"), 29 U.S.C. § 621 et seq. She alleges that she was terminated on the basis of her gender, national origin, and age.

The parties previously consented to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c). DOL now moves under Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all of the plaintiff's claims. For the reasons set forth below, the motion is granted.


Barbara Thompson is an American-born black woman who is currently sixty-two years old. (Defendant's Local Rule 56.1 Statement ("Def. Facts"), ¶ 1; Plaintiff's Statement of Facts in Opposition to Defendant's Motion for Summary Judgment ("Pl. Facts"), ¶ 9). Ms. Thompson began working as a Grade 11 Equal Opportunity Specialist in the Office of Federal Contract Compliance Programs ("the OFCCP") of the Employment Standards Administration ("the ESA") at DOL in approximately 1979. (Def. Facts, ¶¶ 1- 2; Pl. Facts, ¶ 1). In 1981, she was promoted to the position of Grade 12 Equal Opportunity Specialist, the highest grade available. (Def. Facts, ¶ 2).

As an Equal Opportunity Specialist, Ms. Thompson performed compliance evaluations on private companies receiving federal funds and investigated complaints of discrimination against them. (Pl. Facts, ¶¶ 10-13; Deposition of Barbara Thompson ("Thompson Dep."), excerpts attached as Exh. 1 to Declaration of Joseph A. Pantoja dated March 2, 2009, at 68-72). An Equal Opportunity Specialist's duties included the review of personnel files containing employees' and job applicants' private information, such as their social security numbers, home addresses, immigration status, and medical records. (Thompson Dep. at 72-87). While it was not the plaintiff's job to analyze the confidential information contained within these personnel files, and many employers blacked out or coded employees' private information before giving the files to Ms. Thompson, she nonetheless did sometimes have access to that information in the course of her work as an Equal Opportunity Specialist. (Thompson Dep. at 72-87).

From 1980 until August of 1998, Ms. Thompson worked in the OFCCP's Long Island District Office. (Def. Facts, ¶ 11; Plaintiff's Challenges to Defendant's Statement of Material Facts ("Pl. Challenges"), ¶ 33; Thompson Dep. at 87-88, 95-96). In August of 1998, she began working from home on a regular basis as part of a "flexiplace" arrangement. (Pl. Challenges, ¶ 33).*fn1 The OFCCP provided her with a computer, a printer, and a modem for her home work space; Ms. Thompson was responsible for purchasing additional office supplies herself. (Pl. Facts, ¶¶ 34-35; Thompson Dep. at 127-30).

In 1997, Citibank issued every Equal Opportunity Specialist, including the plaintiff, a federal government credit card. (Def. Facts, ¶¶ 12-13). The words "For Official Government Travel Only" were printed on the front of every card. (Def. Facts, ¶ 14). On June 21, 2002, Stanley Wishnick, the District Director of the OFCCP's New York office at the time, issued a memorandum reprimanding Ms. Thompson for misuse of her federal government credit card. (Memorandum dated June 21, 2002 ("2002 Memo"), attached as Exh. 6 to Pl. Facts). The memorandum stated that she had used the card to purchase "goods and services that were not related to official government duties and responsibilities." (2002 Memo at 1). The memorandum further stated that "[r]ecurrence of this abuse of your government credit card will not be tolerated and may lead to . . . severe disciplinary action, up to and including termination of your employment with OFCCP." (2002 Memo at 2).

Approximately two weeks after she received the memorandum reprimanding her for misuse of her federal government credit card, Ms. Thompson began taking out ATM cash advances on the card. (Thompson Dep. at 126). She continued to do so until April 30, 2004. (Notice of Proposed Removal dated Aug. 19, 2004 ("Proposed Removal Notice"), attached as Exh. 10 to Pl. Facts, at 2-3, 6-26). The plaintiff maintains that she used the cash advances to purchase office supplies for her "flexiplace" home work space. (Pl. Facts, ¶ 35; Thompson Dep. at 127). She also states that she had Mr. Wishnick's permission to use her federal government credit card for this purpose. (Pl. Challenges, ¶¶ 43, 77, 83-84). However, Ms. Thompson never submitted receipts or vouchers to the OFCCP for any of those expenses, even though she personally paid the bills from Citibank for purchases made with the credit card and might have received reimbursement if she submitted documentation. (Pl. Facts, ¶ 43; Thompson Dep. at 128-29).

On January 7, 2003, Anne Baird-Bridges, the Director of the Office of Management, Administration and Planning at the ESA, sent a memorandum to all ESA employees concerning their use of federal government credit cards. (Memorandum dated Jan. 7, 2003 ("2003 Memo"), attached as Exh. 7 to Pl. Facts). The memorandum stated in part:

This serves as a reminder to all employees of the proper use of the government travel card. As a cardholder, you agreed that you are responsible for ensuring that the card is used for authorized government travel and travel-related expenses only. Authorized travel expenses include payment for passenger transportation services, subsistence expenses, and other allowable expenses incurred in connection with official travel away from your official duty station. Use of the travel card for personal purposes is strictly prohibited. Not complying with the terms and conditions prescribed in the cardholder's agreement, including being delinquent in paying the travel card bill, is also prohibited. Any unauthorized use of the government travel card, including ATM withdrawals, or becoming delinquent in paying the travel charge card is a serious matter and constitutes employee misconduct. (2003 Memo at 1). The plaintiff does not deny that she received this memo on or about January 7, 2003. (Pl. Challenges, ¶ 32).

In July of 2004, Rachel Torres, then a Program Analyst for OFCCP's Northeast Regional Office, was given the task of conducting an audit of the government credit card usage of approximately 75 employees who were suspected of having misused their credit cards over the course of the preceding twelve months. (Pl. Facts, ¶¶ 18, 21-22; Def. Facts, ¶¶ 44-46; Declaration of Rachel Torres dated Feb. 2009 ("Torres Decl."), ¶ 8). The audit found that seven employees had suspicious transactions on their federal government credit cards, including Ms. Thompson and Wilson Pierre-Louis, another Grade 12 Equal Opportunity Specialist working in the New York District Office. (Pl. Facts, ¶ 23; Def. Facts, ¶ 47; Torres Decl., ¶ 9). Mr. Pierre-Louis was born on April 8, 1959, and is of Haitian national origin.*fn2 (Pl. Facts, ¶¶ 84-85; Def. Facts, ¶ 115).

Ms. Torres shared the results of her audit with Harold Busch, the Acting Regional Director of OFCCP, in July and August of 2004.*fn3 (Pl. Facts, ¶ 24; Def. Facts, ¶ 47; Torres Decl., ¶ 9). Mr. Busch and Ms. Torres discussed the results of the audit with relevant managerial employees in the Northeast Region, including Kenneth Baisden, the District Director for the New York District Office, and Brenda Montgomery, the Assistant District Director. (Pl. Facts, ¶¶ 24, 27-28; Declaration of Kenneth J. Baisden, Sr. dated March 2, 2009 ("Baisden Decl."), ¶ 10; Declaration of Brenda Montgomery dated Feb. 25, 2009 ("Montgomery Decl."), ¶ 10). Mr. Baisden is an African-American man; he was 59 years old as of March 2, 2009, and he is disabled. (Baisden Decl., ¶ 2). Ms. Montgomery was born in the United States; as of February 25, 2009, she was 53 years old. (Montgomery Decl., ¶ 2).

Upon learning of Ms. Thompson's alleged credit card abuse, Mr. Baisden met with Ms. Thompson and asked her to turn in her federal government credit card. (Def. Facts, ¶ 52). Mr. Baisden asserts that at this meeting he also asked the plaintiff about the ATM cash advances that appeared on her credit card statement, and that the plaintiff denied taking out the cash advances and suggested that her son may have been responsible. (Def. Facts, ¶¶ 52-53; Baisden Decl., ¶ 12). Mr. Baisden states that he found this explanation to lack credibility. (Def. Facts, ¶ 54; Baisden Decl., ¶ 12). Ms. Thompson denies mentioning her son at that meeting. (Pl. Challenges, ¶¶ 53, 86).

As part of his investigation into Ms. Thompson's credit card usage, Mr. Baisden inquired whether she had any prior disciplinary history; after looking in the plaintiff's personnel file, he uncovered the June 2002 memorandum reprimanding her for credit card abuse. (Baisden Decl., ¶ 11; Torres Decl., ¶ 10). As a result of that discovery, Mr. Baisden asked Ms. Torres to procure additional credit card records for Ms. Thompson dating back two years to July of 2002. (Baisden Decl., ¶ 11; Torres Decl., ¶¶ 10). Ms. Torres retrieved the requested ...

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