Lela M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 21, 20192019000990 (E.E.O.C. Mar. 21, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lela M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2019000990 Hearing Nos. 480-2016-00186X 480-2016-00560X Agency Nos. 4F-967-0003-15 4F-967-0005-16 DECISION On September 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 16, 2018 final action concerning equal employment opportunity (EEO) complaints claiming 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. BACKGROUND During the period at issue, Complainant worked as an Executive and Administrative (EAS) Level 22 Postmaster at the Agency’s Hilo, Hawaii Post Office. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000990 2 Complainant filed two formal complaints, on February 4, 2015 and January 8, 2016, respectively. In the two formal complaints, Complainant claimed that the Agency discriminated against her in reprisal for prior EEO activity when: 1. on November 6, 2014, her manager issued her a Personal Improvement Plan (PIP) (Agency No. 4F-967-0003-15, hereinafter referred to as “Complaint 1”); 2. on November 6, 2014, the manager started the process of issuing her discipline for her failure to attend an office event (Complaint 1);2 and 3. on October 15, 2015, she was instructed to report to a lower-level post office for a Developmental Detail (Agency No. 4F-967-0005-16, hereinafter referred to as “Complaint 2”). The record reflects that the Agency consolidated Complaints 1 and 2. After an investigation of Complaints 1 - 2, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On August 2, 2018, the AJ issued a decision by summary judgment in favor of the Agency. The AJ found finding the following pertinent undisputed facts were established during the investigation of the formal complaint: During the relevant period, the Manager Post Office Operations was Complainant’s immediate manager. The record reflects that Complainant obtained her Postmaster position through a settlement of a prior EEO complaint which did not implicate the manager. Following Complainant’s appointment as Postmaster of the Hilo Post Office in May 2014, performance of the office struggled. Complainant was coached and assisted by a supervisor and two other Postmasters in September, under the direction of her manager. 2 On February 26, 2015, the Agency issued a final decision dismissing claims 1 - 2 (Complaint 1) for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Complainant v. United States Postal Service, EEOC Appeal No. 0120151534 (August 5, 2015). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 2019000990 3 Regarding claim 1, Complainant asserted that on November 6, 2014, her manager issued her a Personal Improvement Plan (PIP). The manager stated that on November 6, 2014, he issued Complainant a PIP with specific areas and goals for improvement. Specifically, the manager stated he issued Complainant a PIP because her office “has been performing poorly over a period of time. There was no improvement in her office performance even with coaching and assistance from other high performing Postmasters.” The manager further explained that the purpose of the PIP was for Complainant’s “own personal development due to lack of communication between her staff.” The record reflects that Complainant’s performance improved while she was on the PIP and as a result, the manager took Complainant off the PIP in January 2015. Regarding claim 2, Complainant alleged that on November 6, 2014, the manager started the process of issuing her discipline for her failure to attend an office event. According to the manager, Complainant did not attend a mandatory year-end meeting at the Honolulu District Office in November 2016. As a result, the manager conducted an interview with Complainant to determine why she did not attend the meeting. After Complainant indicated that she had a medical reason for not attending the meeting, the manager ended the interview. Agency management took no action against Complainant as a result of the interview. Regarding claim 3, Complainant alleged that on October 15, 2015, she was instructed to report to a lower-level post office for a Developmental Detail. The record reflects that after Complainant’s PIP ended in January 2015, after some initial improvement, her performance declined again. During the period of October 1, 2015 to October 16, 2015, the Hilo Post Office was the worst performing office of the 18 offices in the Honolulu District. Based on Complainant’s performance history and the ongoing problems at the Hilo Post Office under her leadership, the manager decided to temporarily detail Complainant to the position of Postmaster, Keaau Post Office effective October 17, 2015. The manager directed Complainant to focus on four areas of improvement: scanning, communication, wait time, and Delivery Management System (DMS) observations. Complainant was detailed to the Keaau Post Office in an effort to improve her management skills and performance by temporarily overseeing a smaller facility. The record reflects that the Postmaster of the Keaau Post Office supervisors approximately 11 employees while the Postmaster of the Hilo Post Office supervisors approximately 73 employees. By email dated October 15, 2015, Complainant informed the manager that she would not accept the detail to the Keaau Post Office. Specifically, Complainant stated that she was not satisfied with the reasons for instructing her to report to the detail. 2019000990 4 On the same day, October 15, 2015, the manager responded to Complainant’s email, stating the specific performance deficiencies that were the basis for the detail. Complainant subsequently called in sick and remained on leave from October 16, 2015 until she finally returned to duty on January 22, 2018. The record reflects that Complainant did not report for the developmental detail until she returned to duty on January 22, 2018. She did not suffer any loss of grade or pay as a result of the developmental detail. Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was established. The Agency issued the instant final action adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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, she 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. 2019000990 5 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). Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Specifically, Complainant was placed on the PIP because management asserted her post office had been performing poorly for a significant period of time and had not improved despite coaching and assistance provided Complainant by several other postmasters. The PIP was assertedly designed to clarify to Complainant the areas needing improvement and to set measurable goals. With regard to missing the meeting, it was a mandatory year-end management meeting for the district. However, it appears that after Complainant indicated her absence was for a medical reason, the matter was not pursued further and no disciplinary action was issued. Finally, concerning the developmental detail, the manager stated that sometime after improvement was seen following the PIP, Complainant’s performance again began to decline and the detail was proposed to correct those problems. However, it appears Complainant refused to go on the detail and was not forced or disciplined. After careful review of the evidence, we concur with the AJ that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination or unlawful retaliation. We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2019000990 6 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2019000990 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 21, 2019 Date Copy with citationCopy as parenthetical citation