Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120111418 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120111418

Hearing No. 450-2010-00291X

Agency No. 4G-752-0245-10

DECISION

On January 7, 2011, Complainant filed an appeal from the Agency’s December 3, 2010, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor
Customer Services (EAS-17) at the Agency’s Dallas-Preston Station in Dallas, Texas. The
record reveals Complainant received a rating for Fiscal Year 2009 for a detail assignment to
the Dallas Inwood Station, and that the rating was for the period of March 24, 2009, through
September 30, 2009. The record reveals that EAS employees are eligible for an annual pay for
performance (PFP) salary increase and/or lump sum payment based on a fiscal year
performance evaluation.

Complainant filed an EEO complaint dated April 9, 2010, alleging that the Agency
discriminated against her on the bases of disability (cancer) and in reprisal for prior protected
EEO activity when:

On February 5, 2010, Complainant was denied a pay increase.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

In its final decision, assuming Complainant established a prima facie case of discrimination,
the Agency stated it presented non-discriminatory reasons for its actions. The Agency noted
that Complainant’s rating listed Person A and the Supervisor of Customer Services (Person B)
as the evaluators. The Agency stated that there was only one manager and one supervisor at
the Inwood Station for the period involved. The Agency stated the record indicated that
Person B was the Acting Manager of the Inwood Station during most of the year and
Complainant was the supervisor from March 24, 2009, through the end of the fiscal year
which was September 30, 2009. The Agency noted that Postmaster C was the concurring
official on Complainant’s rating.

The Agency noted that Complainant received an overall numeric rating of “3,” which was
deemed a “Non-contributor” on the rating scale. With regard to the four “core requirements”
listed in her rating, the Agency noted Complainant stated in her “End-of-Year
Accomplishments” comments dated November 10, 2009, that she was a non-contributor in
three of the four requirements. Moreover, the Agency noted that the Inwood Station did not
meet its minimal goals for two of the “Core Requirements” listed in the evaluation. The
Agency stated that three of the core requirements for the end-of-year ratings are based on
individual office performance. The Agency found Complainant failed to establish that its
actions in denying her a pay increase were a pretext for discrimination.

On appeal, Complainant argued that management did not give an official explanation why she
was denied a pay increase. Complainant claimed she was entitled to a pay increase since she
was at work during the 2009 year.

In response to Complainant’s appeal, the Agency noted that Complainant did not address the
fact that her National Performance Review (NPR) score for fiscal year 2009 did not merit a
pay increase in 2010. With regard to her contention that she was entitled to receive a raise
since she had been at work during the 2009 year, the Agency stated that mere presence at work
does not merit a pay increase. Rather, the Agency noted that the Guidelines Covering Pay-
For-Performance (PFP) for EAS Employees, explain that employees are evaluated on objective
performance indicators and individual performance objectives (core requirements). The
Agency noted that the individual core requirements are established at the beginning of the year
and are tracked via the Performance Evaluation System (PES). The Agency noted that as a
result of Complainant’s end-of-the-year score of a “3,” she was rated as non-contributor and
thus did not get a pay increase.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Upon review, we find the Agency presented a legitimate, non-discriminatory reason for not
giving Complainant a pay increase, her non-contributor rating of “3” on her Fiscal Year 2009
rating. Despite Complainant’s contention that she was entitled to a pay increase based on the
fact that she worked during fiscal year 2009, we find no evidence to support this assertion.
Moreover, the record indicates that under the PES in order to receive a PFP adjustment EAS
Employees must receive a performance rating warranting an adjustment. We note that
Complainant does not claim that the numerical rating she received on her evaluation merited a
pay increase. Moreover, she does not identify any similarly situated individuals who were
allegedly treated differently. Additionally, we note that Complainant does not contest any part
of the actual rating she was given for Fiscal Year 2009. We find Complainant failed to show
by a preponderance of evidence that the Agency’s actions were a pretext for discrimination or
retaliation.
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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
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work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 7, 2013
Date