0120130033
09-23-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120130033
Hearing No. 460-2011-00121X
Agency No. 4G-770-0167-10
DECISION
Complainant filed an appeal from the Agency's August 23, 2012 final order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts this 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 Supervisor, Customer Services, assigned to a detail at the Agency's Houston District Office, in Houston, Texas. His permanent duty station was at the Agency's Bellaire, Texas Post.
On May 22, 2010, Complainant filed a formal EEO complaint, alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), color (Brown), and age (57) when, on February 26, 2010, Complainant became aware that the Agency issued him a lower FY 2009 rating than the rating the Agency issued to two younger, non-Hispanic, female counterparts for their work while serving on the same detail for the same period of time.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for summary judgment. Complainant did not respond to the motion. The AJ issued a decision without a hearing finding no discrimination.
In reaching this decision, the AJ found the following pertinent facts were established during the investigation. Comparator 1 was an African-American woman, age 49. Comparator 2 was a Caucasian woman, age 38. Both were younger than Complainant and non-Hispanic. Both received a higher rating and commensurate pay increase that was denied Complainant. The record shows that Complainant and the two comparators were assigned to the same detail at the Houston District Office for the majority of the rating period. Complainant and the two comparators each held permanent positions in different post offices with different postmasters. Complainant's permanent duty station was at the Bellaire, Texas Post Office, Comparator 1 was from the Angleton, Texas Post Office and Comparator 2 was from the League City, Texas Post Office
According Complainant, the comparators were "granted pay increases based on the performance of their home units [permanent duty stations] in designated goals" even though they were absent from their home stations on the detail. However, Complainant maintains that his rating should have included the achievements of the Bellaire office's Automatic Postal Center (APC) unit.
The Bellaire Postmaster (African American female, age 52) was responsible to giving Complainant an overall Pay-for-Performance (PFP) core requirement rating of "4" for FY 2009. As a result of the rating, he did not receive a pay increase. The Bellaire Postmaster stated that Complainant had only reported to her for two weeks of the rating period because he had been away on the detail. Therefore, she did not consider the achievements of the Bellaire APC unit.
It is undisputed that the Bellaire Postmaster did not prepare the ratings for the two comparators. Each of their ratings was prepared by their respective home office postmasters.
Complainant filed a "recourse request" (an internal appeal) regarding the rating given him by the Bellaire Postmaster, questioning why his rating was not based on the performance of his home station. The appeal was denied by the Manager of Post Office Operations (Hispanic male, age 49) who explained that Complainant had worked the majority of the evaluation period in another functional unit and that he had "no documented information to substantiate a request for a higher rating." He added that because Complainant had not entered other performance objectives as required when an individual goes on a detail assignment, there was not adequate documentation to support a higher rating. Specifically, he stated that documentation on "APC performance" was not submitted to substantiate how Complainant's efforts affected an increase in APC at Bellaire from the prior year.
The District Manager (African American male, age 45) concurred in the denial of Complainant's appeal of his rating. He averred when Complainant filed the appeal of his rating, it first went to the Manager and then to him, as the District Manager. The District Manager stated, "I could not justify changing Complainant's rating without documentation." The District Manager averred, "the responsibility was Complainant's to change his criteria [because he was on a detail] in the system." He stated that he was not familiar with the two named comparators.
Based on these facts, the AJ concluded that Complainant failed to identify the existence of a genuine issue of material fact in order to defeat the Agency's motion for summary Judgment. The AJ reasoned that Complainant could not establish a prima facie case of color, national origin, sex or age discrimination because he "cannot identify a co-worker outside his protected classes who were similarly situated and treated more favorably than he." The AJ reasoned that one of the comparators was over age 40 and therefore Complainant could not establish an age claim with regard to her, because she was in the same protected group. The AJ acknowledged that all three were on details to the same project at the Houston District Office, but reasoned that they all had permanent positions in different post offices with different managers and postmasters.
The AJ then found that the Agency provided a legitimate, nondiscriminatory reason for its action, Complainant received a rating of 4, which disqualified him, and that the disqualifying rating "was due to his failure to perform and his short stint at the station during the rating period; not because of his color, national origin, sex, or age." The AJ found that "there is no evidence of discriminatory animus on the part of the Agency leading up to its decision not to give Complainant an increase."
The AJ concluded that Complainant failed to sustain his burden of proving by a preponderance of the evidence, when drawing all inferences from the facts in Complainant's favor, that the Agency unlawfully discriminated against him. Based on this conclusion, the AJ concluded that the Agency was entitled to a summary judgment decision in its favor.
The Agency's final action implemented the AJ's decision. This appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
As an initial matter, we note that Complainant did not respond to the Agency's motion for summary judgment at the hearing level. On appeal, he now provides, for the first time, a 2012 document purporting to show that the Manager involved also had control over the evaluations of the two comparators. However, the document submitted is dated 2012 and there is no evidence that this was in effect in 2009 when the ratings in contention were issued. Thus, we are not persuaded that the document provided shows that the Manager had any influence on the evaluations of the comparators in 2009. Additionally, Complainant does not explain why he did not submit this to the AJ. We are not convinced by his argument that he feared reprisal if he responded to the Agency's motion for summary judgment.
It was Complainant's supervisor, the Bellaire Postmaster, who initially gave him the disputed rating and she was not involved with the ratings of the comparators. The stated reason was that Complainant was not at his home unit long enough. Additionally the responsible management officials indicated that Complainant failed to enter performance objective into the computerized rating system reflecting his detail. Taking the record as a whole, we find that under the circumstances of this case, Complainant has failed to show by a preponderance of the evidence that the Agency's reasons for not giving him a pay increase were a pretext to mask discrimination.
The Agency's final order adopting the AJ's finding of no discrimination 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 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
September 23, 2014
__________________
Date
2
0120130033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130033