Complainantv.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionJul 11, 2014
0120121258 (E.E.O.C. Jul. 11, 2014)

0120121258

07-11-2014

Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.


Complainant

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120121258

Agency No. 4F-945-0047-11

DECISION

On January 21, 2012, Complainant filed an appeal from the Agency's December 20, 2011, final decision concerning her 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 the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUE PRESENTED

The issue presented before the Commission is whether Complainant has proven discrimination based on race (African American), color (black), sex (female), age (55), and reprisal for prior EEO activity when she treated differently than similarly-situated employees outside her protected groups with respect to the terms, benefits, and privileges of her employment and harassed when the Agency subjected her to a hostile work environment.1

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Oakland Post Office in California. On June 3, 2011, she filed a formal complaint in which she alleged generally what has been identified as the "Issue Presented." The Agency accepted the complaint for investigation, and at the conclusion thereof, provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or, alternatively, a final agency decision (FAD) based on the record. Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency did not address all of her allegations of discrimination. She further contends the Agency did not interview all of the witnesses she provided or thoroughly review all of the evidence she submitted in accordance with her efforts to protect her rights under the governing EEOC statutes. We address those contentions below. Complainant's remaining contentions on appeal restate her case-in-chief and, as such, will not be addressed separately but instead are inherently addressed in the "Disparate Treatment" and/or "Harassment" sections below. For its part, the Agency requests that we affirm its FAD.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

ANALYSIS AND FINDINGS

1. Contentions on Appeal

At the outset, we address Complainant's contentions on appeal. Upon review, we find that Complainant's contention that the Agency did not address each of her allegations of discrimination is not supported by the record, as the FAD clearly restates and addresses each behavior or action Complainant's formal complaint alleges to be discriminatory. Further, there is no evidence that the Agency failed to interview all necessary witnesses, did not consider all relevant evidence, or otherwise fell short of its responsibility to create an impartial investigatory record from which the Commission can determine whether discrimination occurred. As stated earlier, Complainant's remaining contentions on appeal are inherently addressed in the "Disparate Treatment" and/or "Harassment" sections below.

2. Disparate Treatment

Complainant alleges she was treated differently than similarly situated employees based on her race, color, sex, age, and prior EEO activity when she: (1) was not selected to remain or proceed in the Corporate Succession Planning program in January 2009; (2) received a National Performance Assessment (NPA) rating of three (out of 15) in the category of "Budget" regarding her 2009 accomplishments in December 2009; (3) was not provided equitable resources such as budget and complement but was held accountable for any shortcomings since March 2009 and ongoing; (4) received nine Transitional Employee (TE) carriers while a male counterpart received 17 TEs in October 2010; (5) received an NPA rating of four in the category of "Leadership" in February 2010; and (6) was not given an increased score, upon at her request, regarding her approved 2010 NPA ratings in March 2011.

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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 consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, for purposes of our analysis and without so finding, that Complainant has sufficiently raised an inference that the actions she alleges to be discriminatory occurred because of her membership in the named protected classes.

We now turn our attention to whether the Agency articulated legitimate, nondiscriminatory reasons for engaging in the actions Complainant believes constitute impermissible disparate treatment. Burdine at 253. In this regard, the Agency stated or provided the following.

Regarding the Complainant's nonselection for the Corporate Succession Planning program, Complainant's supervisor (S1), the person named by Complainant as the alleged discriminating official, stated that he recommended Complainant for the program. See S1 Affidavit (Aff.) at Q&A 13. He provided documentation to support this assertion. See ROI at 315-320. We note that S1 also stated that he recommended no one else for the program. See S1 Aff. at Q&A 19.

The record reflects that Complainant given a less than desired rating in the category of "Budgeting" regarding her end-of-year 2009 accomplishments because her financial control results fell short of expectations. See ROI at 344. We note that the record further reflects that during the middle of the 2009 fiscal year, S1 expressed concern that, regarding Complainant's area of responsibility, though "[Complainant] has made good progress in the area of fiscal management ... there has been some stagnation in the areas of work hours and overtime control." Id.

Regarding Complainant's "equitable resources" allegation, the Agency stated that Complainant requested increased complement but was not provided with additional resources because S1 could not approve an increase in costs for that position without supporting data, which Complainant failed to provide despite S1's requests that she do so. See S1 Aff. at Q&A 33. S1, the alleged discriminating official, stated that he never approved anyone for 14 TE's while approving Complainant for only nine. He further stated that to his knowledge, no additional staffing was provided to anyone. Id. at Q&A 53. We note that Complainant presented no evidence indicating that S1's testimony cannot be believed or is otherwise untruthful.

With respect to the Complainant's "Leadership" rating of 4 in Complainant's 2010 NPA ratings, the record reflects that S1 had some concerns about Complainant's ability to control expense and personnel costs, achieving improvements in work-hour and overtime reductions to help drive the Agency's S&B plan. See ROI at 348. This is also the reason that Complainant's request to have the Agency change or adjust that rating was denied in March 2011. Id. We find that the Agency has stated legitimate, nondiscriminatory reasons for its actions.

In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus because of her race, color, sex, age, and for engaging in prior EEO activity.

Complainant has failed to carry her burden. Instead, she offers only bald statements and speculation that she believes demonstrate that the Agency's raesons for its actions constitute discrimination by S1 based on her race, color, sex, age, and prior EEO activity. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission is not persuaded that Complainant was treated differently based upon criteria prohibited by Title VII or the ADEA.

3. Harassment

Harassment of an employee that would not occur but for Complainant's race, color, sex, age, or prior EEO activity, as alleged here, is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a claim of hostile environment harassment based on race, color, sex, age, and reprisal, Complainant must demonstrate the existence of the following five elements:

(1) she is a member of the named statutorily protected classes;

(2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the named protected classes;

(3) the harassment complained of was based on the named protected classes;

(4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and

(5) there is a basis for imputing liability to the Agency.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).

Regarding this portion of Complainant's claim, Complainant alleged she was subjected to a hostile work environment since approximately 2009 and ongoing in that she was treated in condescending manners both privately and in front of others when: (1) on March 16, 2010, she was told in an angry and hostile manner that she needed to validate her carriers in response to a comment she made during a staff meeting regarding a holiday complement; (2) on April 21, 2010, she was rudely and abruptly interrupted as she was discussing her office's hours per route to SPLY during a meeting and her subordinates were told not to listen to her; (3) during the week of May 1, 2010, a statement was made during a teleconference that her office, which is mostly African American, did not have the "DNA" to control overtime; (4) on October 28, 2010, while she was on leave her staff was told to drop any loyalties they had for her and was offended by the use of the word "culture" in reference to her office's performance; (5) in February 2011, while she was calling in sick, a comment to the effect of "Oh, you are calling in sick" was made in front of a male colleague; (6) on at least five occasions during November 2010 - February 2011, her calls were not returned while she was out on extended leave; and (7) another reference to "culture" was inappropriately recorded in connection with her 2010 NPA accomplishments.

Assuming that Complainant has proven the existence of the first two elements of a hostile environment claim, the Commission agrees with the FAD that there is no evidence that these alleged occurrences, if they indeed occurred, were based on Complainant's memberships in the named protected classes, as they are not facially derogatory or inherently related to any of the protected classes named by Complainant as the reason she was subjected to such behaviors. Agency management admitted to using terms such as "DNA" and "culture" but made use of those terms to refer to things such as "achievement" or "mindset," not Complainant's or her staff's memberships in any protected class. The only information which suggests otherwise is Complainant's own allegations and subjective interpretations. Because Complainant failed to present evidence showing the existence of the third element of hostile work environment allegations, she cannot prevail in showing that she was harassed in a manner prohibited by Title VII or the ADEA.

Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), to the extent Complainant's believes that the actions discussed in the "Disparate Treatment" portion of this decision also created a hostile work environment, a finding of harassment with respect to those items is precluded by our determination that Complainant failed to establish that any of those actions were motivated by discriminatory animus. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994); see also, Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has failed to prove discrimination as alleged. The FAD is hereby 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 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), 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

July 11, 2014

Date

1 We define the issues generally because Complainant's claim contains many examples of behaviors and actions she alleges to be discriminatory. Each of Complainant's allegations, however, is stated with specificity where applicable below.

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0120121258

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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