0120131471
08-20-2013
Berta Joseph, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Berta Joseph,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131471
Hearing No. 450-2012-00101X
Agency No. 4G-760-0075-11
DECISION
Complainant filed an appeal from the Agency's March 13, 2013, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Fort Worth Processing and Distribution Center facility in Fort Worth, Texas.
On July 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on April 13, 2011, Complainant became aware that she should have been scheduled for an interview, after she passed the Maintenance Mechanic test; but she was not immediately interviewed, and
2. on April 13, 2011, Complainant became aware that others were reassigned to the Maintenance craft, but she was not given the same opportunity.
The record shows that Complainant had been employed with the Agency for eleven years. She had engaged in prior EEO activity, the latest of which closed in 2009. The officials named in this action testified that they were not aware of Complainant's prior EEO activity.
Complainant applied for two positions and passed the test for one of the positions. Specifically, on April 7, 2010, Complainant took the Exam 955 Maintenance Assessment System test and she received a passing score of 82.96 on the Maintenance Mechanic portion of the examination. Her score did not qualify her for placement in any other Maintenance craft positions.
The Agency policy provides that after an individual passes the Maintenance Mechanic test, the applicant is supposed to be scheduled for an interview. After Complainant passed the Maintenance Mechanic section, her name was added to the Register, but the Agency did not schedule her for an interview until January 2013.
The Human Resources Generalist testified that she had been told by the former manager that Complainant had crossed out Maintenance Mechanic on her Applicant Data Collection Sheet and, consequently, was not scheduled for an interview. After further review, management determined that Complainant should have been scheduled for an interview. Complainant was eventually interviewed on January 2013.
In addition, the record shows that the Agency used a tiered approach to placements. First priority went to current maintenance employees who were already working within the craft. Next, the Agency gave priority in placement to maintenance employees who wanted to downgrade or to maintenance employees who were eligible for promotion. If those resources did not produce a viable candidate, the Agency considered the "In Service Register." The In Service Register consists of non-maintenance employees who were eligible to come to the maintenance craft. The employees on the In Service Register are considered in score order.
There were thirteen individuals ahead of Complainant on the In Service list.
The record shows that the Agency made some selections but had not reached Complainant's name or score on the register. The record shows that the Agency placed others in, but not in the Maintenance Mechanic position which is at issue. Although others were placed as Maintenance Mechanics, the record shows that they were on the already in maintenance craft or had a higher score. The record does not show anyone being selected for the Maintenance Mechanic position with a lower score.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on February 19, 2012, and she issued a decision on March 4, 2013.
The AJ found that Complainant did not establish the prima facie claims because she did not show that was treated differently than other similarly situated individuals outside of her protected group.
Regarding her retaliation claim, the AJ also found that the alleged responsible management officials were not involved in her prior EEO activity and denied any knowledge of the prior activity. The AJ also reasoned that the prior activity was too remote in time.
Next, the AJ found that the Agency had articulated a legitimate, nondiscriminatory reason for its action. (Management testified that Complainant had crossed out the Maintenance Mechanic position on her application data sheet). The AJ concluded that although the Agency committed an error in not initially interviewing Complainant, she was not harmed because her name remained on the Register and no one with a score lower than Complainant's had been hired from the In Service Register for the Maintenance Mechanic position. The AJ found that Complainant had not shown by a preponderance of the evidence that the Agency's legitimate nondiscriminatory reason was a pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
To prove disparate treatment, Complainant must present 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. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Complainant may establish reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful in articulating legitimate reasons, the burden shifts back to Complaint to demonstrate by a preponderance of the evidence that the Agency's reasons for its actions were a pretext for discrimination or reprisal. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). ; U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983).
Moreover, the hearing provided Complainant with the opportunity to demonstrate that the Agency's articulated reasons were a pretext for discrimination, but Complainant did not introduce evidence to dispute the Agency's reasons. In this instant case, it is undisputed that the Agency had not yet reached Complainant's name on the Register.
Further, because the AJ did conduct a hearing, she had the opportunity to consider witness credibility. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a careful review of the record and mindful that a hearing was conducted, we discern no basis to disturb the AJ's ultimate conclusion. For these reasons, we conclude that the record supports that AJ's ultimate finding of no discrimination.
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 tends 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 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
August 20, 2013
__________________
Date
2
0120131471
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131471