0120091130
04-16-2009
Emily D. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Emily D. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091130
Agency No. 4J-606-0014-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 9, 2008 final decision concerning her equal employment opportunity (EEO) complaint claiming unlawful 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.
During the period at issue, complainant was employed as an Occupational Health Nurse at the agency's Cardiss Collins Occupational Health Services Office for the Chicago District in Chicago, Illinois.
On February 12, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (African-American), sex (female), color (tan), and in reprisal for prior EEO activity when:
on October 22, 2007, she became aware she had been denied the opportunity to apply for a Postal Service Occupational Health Nurse Administrator (OHNA) position when someone else was promoted to the position.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On November 5, 2008, the AJ issued an order, dismissing the formal complaint from the hearing process. In her Order, the AJ concluded that because complainant failed to show cause for her noncompliance with her July 2, 2008 pre-hearing submission court order and for the untimely filing of her pre-hearing submission, she remanded the case to the agency for issuance of a final decision. Therefore, the agency issued the instant final decision on December 9, 2008.
In its December 9, 2008 final decision, the agency found no discrimination. The agency concluded that complainant did not establish a prima facie case of race, sex, color and reprisal discrimination. The agency further found even assuming, for the sake of argument only, complainant established a prima facie case of race, sex, color and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The Manager, Human Resources (M1) stated that there was no hiring of any OHNA in October 2007 because the identified OHNA (O1) was not to retire until January 30, 2008 which she later changed to March 31, 2008. Specifically, M1 stated that when she first learned of O1's plans to retire, the OHNA position in the Chicago District office would become vacant. M1 stated that she contacted the National Medical Director (Director) for validation on the recruitment process for filling an OHNA position. M1 stated "I had the option of hiring a contract OHNA or revert the position in its entirety or officially post the job in house. There is some communications on possibly closing medical facilities within the USPS. I decided to contract the OHNA position out it makes it easier if the direction is to close medical units. I could just discontinue the contract where a career OHNA I would have to find placement for." M1 stated that she chose to revert the agency OHNA position and replace the OHNA position with an identified contractor (C1) for two years. M1 stated, however, that because O1 changed her retirement date from January 30, 2008 to March 31, 2008, the OHNA position did not become vacant until the effective date of O1's retirement. Furthermore, M1 stated that on January 29, 2008, the OHNA position in the Chicago District was inadvertently posted on the agency's intranet without her permission and she canceled it immediately.
With respect to complainant's argument that an identified OHNA contractor (C2) was in an OHNA position within 120 days of her being selected for the OHNA position and also was promoted without posting the position for other nurses within a fifty mile radius to apply, M1 stated that she was not involved in the hiring of C2.
The OHNA Administrator (A1) stated that in regard to complainant's assertion that she was denied the opportunity to apply for the agency OHNA position when she learned on October 22, 2007, that C1 had been promoted to the subject position, complainant "could not possibly have known this on October 22, 2007. [C1] was not even interviewed until Mid-January, 2008. No person has been promoted to this position. A contract OHNA was placed in this non-career position on 4-14-08." A1 further stated that she was involved in discussions with M1 as to whether the subject position should be reverted and go with a contractor "as has been the USPS policy since 1995 or 1996." A1 stated that because M1 chose to revert the subject position and use a contractor, "I knew of a contractor from Las Vegas who was qualified and wanted to move back to Chicago." A1 stated that C1 "had previously held a contract position as both a Nurse Case Manager and OHNA with the USPS in Las Vegas, Nevada."
With respect to complainant's assertion that she and M1 took C1 around the unit to introduce the new OHNA while O1 was still currently assigned to that position at that time and had no knowledge that her position was being filled, A1 acknowledged this matter. A1 further stated that O1 "had turned in her resignation papers effective January 31, 2008. [M1] did not want the Occupational Health Services (OHS) unit to be without an OHNA for a period of time." A1 stated that she and M1 interviewed C1 and "felt she was eminently qualified for the OHNA position and offered her the contract." A1 stated that following the interview, she and M1 escorted C1 to meet O1; however, they were unable to locate her and instead introduced C1 to two other nurses. A1 stated that it was not until after C1 was in the OHS unit that O1 "rescinded her retirement. This was about 3 weeks before her planned retirement date. As stated before [M1] did not want to leave the position open after [O1] had retired."
A1 stated that the subject OHNA position "involves the management of the entire Occupational Health Services and as a consultant to Management in the areas of the Safety Program Evaluation Guide, Threat Assessment Committee, District Reasonable Accommodation Committee, Serious Accident Boards, Family Medical Leave Act issues handling grievances where nurse and medical issues are concerned, testifying in arbitration cases, etc." A1 stated that complainant, a staff nurse, did not have the requisite work experience. Specifically, A1 stated that complainant "performs drug screening, electronic Medical Assessments and sees employees who are in need of care while on the job. At times the Hepatitis B immunizations and flu shots may be given."
With respect to complainant's assertion that it is a contract violation when management selects contract nurses to be used as replacements for an agency nurse position, A1 stated that it was not a violation of the National Professional Postal Nurses (NPPN) contract. More specifically, A1 stated that complainant is a staff nurse and the position that she "is talking about is a management position and not covered by the [NPPN] agreement of which she is a member." A1 stated that Section 1.02 of the NPPN states that "this Agreement does not apply to 1.02(a) Senior Area Medical Directors, Associate Area Medical Directors, Postal Service Physicians, and Occupational Health Nurse Administrators."
With respect to complainant's assertion that C2 was in the OHNA position within 120 days of her being selected for the OHNA position and also was promoted without posting the position for other nurses within a fifty mile radius to apply, A1 stated "I am not sure what [complainant] is referring to when she states that [C2] was in the OHNA position within 120 days of her being selected for the position. It appears that she is referring to the NPPN Contract which has nothing to do with exempt positions." A1 stated that after an agency official retired, C2 was asked to be the acting OHNA and was later offered the contract OHNA position. Furthermore, A1 stated that C2 is at a management level in the contract position of the OHNA Administrator and she "is not and never has been a staff nurse. Again, the NPPN contract states in Section 1.02 that recognition set forth...does not apply to 1.02(a) Senior Area Medical Directors, Associate Area Medical Directors, Postal Service Physicians, and Occupational Health Nurse Administrators. Therefore, this is not a contract violation."
On appeal, complainant contends that the context of the instant complaint "was the [manner] in which a contract nurse was hired in a postal position administratively without the position being posted for the Postal Nurse to apply." Complainant further states "it is ludicrous to have a policy for hiring, promotion, bidding and posting positions if individuals can selectively place who they want, where they want to say this is not what the policy mean."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination.
Moreover, the Commission determines that the arguments raised by complainant on appeal relate to various issues that the Commission has addressed above.
After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 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 (Z1008)
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
April 16, 2009
__________________
Date
2
0120091130
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091130