01996947
10-02-2001
Veda M. Odle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.
Vede M. Odle v. United States Postal Service
01996947
October 2, 2001
.
Veda M. Odle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Mid-Atlantic Area),
Agency.
Appeal No. 01996947
Agency Nos. 4D-250-0026-99 & 4D-250-0036-99
DECISION
Complainant timely initiated appeals from two final agency decisions
(FAD) concerning her complaints of 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405. In both
complaints, complainant alleged discrimination on the bases of sex
(female) and age (40). In Agency No. 4D-250-0026-99 complainant alleged
that she was discriminated against when she was notified that she
would receive a rating of �Met Expectations/Objectives� for her Fiscal
Year (FY) 1998 Executive and Administrative (EAS) Merit performance
evaluation. In Agency No. 4D-250-0036-99 complainant alleged that she
was discriminated against when the Manager of Post Office Operations
gave complainant a direct order to report to work despite medical
documentation evidencing that complainant should not work; and that,
after reporting to work, complainant's multiple requests to leave work
under the Family Medical Leave Act were denied.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as Postmaster, EAS-20, Marion, Virginia. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on February 26, 1999 in No. 4D-250-0026-99
and on February 1, 1999 in No. 4D-250-0036-99. At the conclusion of
the investigations, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively to receive
a final decision by the agency. Complainant requested that the agency
issue final decisions.
Agency No. 4D-250-0026-99
Complainant was informed by the Manager of Post Office Operations,
her immediate supervisor,
on or about December 5, 1998, that she would receive a �Met
Objectives/Expectations� merit evaluation for FY 1998. Complainant
received a Far Exceeded Objectives/Expectations evaluation for FY 1997.
In its FAD, the agency concluded that complainant did not meet
the burden of establishing a prima facie case of age and/or sex
discrimination based on disparate treatment. The agency pointed
out that comparison employees both within and outside complainant's
protected groups received Far Exceeded merit ratings. Thus, the FAD
found that there was no evidence that agency officials were predisposed
to discriminate against individuals within complainant's protected age
and/or sex group involving merit evaluations. The agency also alleged
that it had articulated legitimate nondiscriminatory reasons for the
�Met Objectives/Expectations� evaluation, relying on the statements of
the Manager of Post Office Operations. He stated in his affidavit and
in correspondence that complainant only accomplished a portion of her
goals, her retail revenue decreased, she needed to communicate more with
the customers, she did not assist the District in achieving its goals
outside of her office, and that there were customer complaints.
On appeal, complainant argues that the agency's comparison employees
were not similarly situated to complainant. Complainant thus argues
that she established a prima facie case of discrimination on the basis
of her sex, because three male EAS-20 Postmasters received higher
merit evaluations than she did. Complainant further argues that she
established a prima facie case of discrimination on the basis of age
because only one individual over the age of 40 received a higher
merit evaluation, and thus a disproportionately low percentage of
individuals over the age of 40 received a higher merit evaluation.
Complainant then argues that the agency's legitimate nondiscriminatory
reasons for its actions were suspect because complainant received a Far
Exceeded Objectives/Expectations evaluation for FY 1997. In addition,
complainant argues that the Manager of Post Office Operations changed
his rationale over time and used subjective criteria.
In reply, the agency emphasizes that each year's evaluation must
be judged on its own merits, and that complainant has not offered
any supporting documentation that puts her superior or equal in
accomplishments for FY 1998 to any male under forty that received a Far
Exceeded Objectives/Expectations. In addition, the agency reiterates
the reasons given by the Manager of Post Office Operations for his
rating of complainant. The agency additionally submits that in order
for complainant to show age discrimination, she must show that age was
a determinative factor in the alleged discrimination.
Agency No. 4D-250-0036-99
On December 17, 1998, complainant was in a duty status at the Marion
Post Office. Two weeks earlier, on December 3, 1998, the Appalachian
District's Manager of Human Resources advised complainant that she was
being reassigned to a Postmaster position in Collinsville, Virginia,
effective December 19, 1998. On December 17, 1998, complainant received
a telephone call from the Manager of Post Office Operations informing
her that he was going to transfer the accountability of the Marion Post
Office after normal business hours. Complainant states that she told the
Manager of Post Office Operations of her doctor's restrictions and that
she would not be able to accomplish the task. According to complainant,
the Manager of Post Office Operations issued her a direct order to be at
the Marion Post Office at 5:00 p.m. Complainant further alleges that
she provided the Manager of Post Office Operations with her sick leave
request and medical documentation, and that three times she requested
leave under the Family and Medical Leave Act, all of which were denied.<1>
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of age and/or sex discrimination, because she failed to
identify any specific comparison employees who were treated more favorably
than herself. In addition, the Manager of Post Office Operations stated
that complainant never told him that she could not work due to the
recommendation of her physician. The Postal Systems Coordinator (female,
44), a witness to the conversations of the complainant and the Manager
of Post Office Operations, reported that complainant did not say anything
about documentation from her doctor stating she was incapacitated to work.
On appeal, complainant contends that when she filed the instant complaint
of discrimination, she did not allege retaliation for having engaged in
prior protected EEO activity, but that the chronology of the events of
this case is highly indicative of a traditional retaliation-type claim.
Complainant requests that the Commission add the basis of retaliation
to complainant's complaint and remand to the agency for further
investigation. In addition, complainant contends that she established a
prima facie claim of discrimination, emphasizing that it is unnecessary to
identify any specific comparison employees who were treated more favorably
than herself. In addition, complainant contends that the Manager of Post
Office Operations statement and those corroborating him were not credible.
In reply, the agency finds complainant not to be credible on the basis
that she worked all of pay period 26, which was December 5, 1998,
to December 18, 1998; she visited a doctor for outpatient services on
December 16, 1998, yet came to work on December 17, 1998, the very next
day; and complainant did not tell anyone that she was incapacitated.
The agency emphasizes that at least three witnesses, including the
Manager of Post Office Operations, Postal Systems Coordinator, and a
Postal Operations Clerk, testified that complainant never indicated
she was sick; that complainant also came to work on December 18, 1998;
and that in complainant's CA-20 report her physician indicated she was
not incapacitated until December 18, 1998.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See also Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979) (requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). A complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
In order to establish a prima facie case of discrimination, complainant
may show that she is a member of a protected group and that she was
treated less favorably than other similarly situated employees outside
his protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
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. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
Agency No. 4D-250-0026-99
The agency articulated legitimate nondiscriminatory reasons for
complainant's performance evaluation of �Met Objectives/Expectations.�
The Manager of Post Office Operations indicated that complainant only
accomplished a portion of her goals, her retail revenue decreased, she
needed to communicate more with the customers, she did not assist the
District in achieving its goals outside of her office, and that there
were customer complaints. The burden is therefore on the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reasons were pretextual. On appeal, complainant has not offered evidence
to demonstrate that the agency's reasons were pretextual.
Moreover, an employer has the discretion to determine how best to
manage its operations and may make decisions on any basis except a
basis that is unlawful under the discrimination statutes. Furnco; Nix
v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984).
In addition, an employer is entitled to make its own business judgments.
The trier of fact must understand that the focus is to be on the
employer's motivation, not its business judgment. Loeb v. Textron, Inc.,
600 F.2d at 1012 n.6. Complainant has failed to sufficiently show that
the agency's action was unreasonable in terms of business judgment, and
thus, without more, complainant's argument that the agency's articulated
reasons were a pretext for discrimination is unproven.
Agency No. 4D-250-0036-99
As a preliminary matter, we deny complainant's request on appeal to add
her allegation of reprisal and to remand the matter to the agency for
investigation. As complainant recognizes, the timing of the allegation
is untimely. Complainant did not show good cause for not raising the
allegation in a timely matter.
However, we agree with complainant that her failure to show that she
was treated less favorably than other similarly situated employees
outside her protected group was not necessarily fatal in making her
case of discrimination. Nevertheless, we also find that complainant
did not set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination could be drawn. Essentially, complainant
argues that since she was treated poorly and/or unfairly, it could only
have been because of her sex and/or age. There could be any number of
explanations for complainant's treatment unrelated to her sex and/or age.
Complainant has failed to provide sufficient evidence from which to draw
an inference of sex and/or age discrimination.
Even assuming arguendo that complainant established a prima facie case
of discrimination, she failed to establish by a preponderance of the
evidence that the agency's articulated nondiscriminatory explanation for
its action was a pretext for discrimination. As previously indicated,
the agency submitted that the Manager of Post Office Operations did not
know of complainant's condition. Complainant acknowledges that there
are credibility questions involved. However, based on the record we
do not think the complainant has sufficiently shown that the Manager
of Post Office Operations was not credible. The agency adduced other
witnesses to verify the Manager of Post Office Operations position that
he did not know of complainant's condition. Complainant did not adduce
other witnesses to verify her version.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FADS.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 2, 2001
Date
1 Complainant contends that on December 16, 1998, she obtained a
Certification of Health Care Provider (Family and Medical Leave Act of
1993, Form WH-380), which was signed by her psychiatrist. Complainant
also obtained a December 16, 1998 dated Attending Physicians Report, Form
CA-20, with which she intended to file a claim with the Office of Workers'
Compensation Programs. Complainant further obtained a signed and December
16, 1998 dated statement from her psychiatrist which diagnosed her with
post-traumatic stress disorder; major depression, moderately severe,
chronic; and generalized anxiety disorder, moderately severe, chronic.
Complainant's psychiatrist concluded that complainant had a combination
of emotional and physical problems which made her incapable of gainful
employment. Complainant does not allege that she was subjected to
disability discrimination. The Commission does not have jurisdiction
over the administration or enforcement of the Family and Medical Leave
Act, which is enforced by the United States Department of Labor.