01983948
10-24-1994
Deborah Park, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area) Agency.
Deborah Park v. United States Postal Service
01983948
July 10 2001
.
Deborah Park,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area)
Agency.
Appeal No. 01983948
Agency No. 1B-145-1050-94
Hearing No. 160-95-8444X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges she was discriminated against on the
bases of her sex (female), age (DOB May 11, 1951), and reprisal (prior
Title VII activity) when:
(1) she was denied a temporary detail as a maintenance control
technician<1>;
she was denied maintenance training (MARS);
she was denied placement on the in-service promotion eligibility
register (PER) for a maintenance control technician position; and
after submitting a work improvement suggestion with a male coworker
(CW 1: age 41 years, prior EEO activity unknown), he received an award
while she did not.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Mail Processor at the agency's
Processing and Distribution facility in Elmira, New York, filed a
formal EEO complaint with the agency on October 11, 1994, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination with regard to Issue No. 1 because the selectee
was older than complainant. The AJ did not specifically address whether
complainant had established prima facie cases of sex and/or reprisal
discrimination with respect to the remaining issues, and of age,
sex and/or reprisal discrimination with respect to Issues 1 through 4.
Instead, the AJ proceeded directly to the question of whether the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
found that the agency had indeed done so. Specifically the agency stated
that complainant, as an employee in the clerk craft, was not eligible
for the temporary maintenance control technician position, MARS, and
placement on the PER for the maintenance control technician position,
because these were restricted to members of the maintenance craft.
In addition, the agency stated that complainant was denied an award,
after submitting a work improvement suggestion with a coworker, due
to administrative oversight. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination. The agency's final
order implemented the AJ's decision.
On appeal, complainant restates many of the arguments previously made
prior to the AJ's decision. In addition, complainant argues that the
AJ erred in issuing a decision without a hearing, essentially arguing
that material facts are in dispute. Complainant further argues that
the agency did not fully comply with the AJ's Order for production
of documents, and that one of the agency witnesses committed perjury.
Finally, complainant argues that the AJ demonstrated bias by holding
a teleconference meeting with agency representatives that excluded
complainant. In response, the agency restates the position it took in
its FAD, and requests that we affirm its final order.
After a careful review of the record, we find that the AJ correctly
found that there was no genuine issue of material fact in this case.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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). 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).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was not selected
for the position; and (4) she was accorded treatment different from that
given to persons otherwise similarly situated who are not members of her
protected group or, in the case of age, who are considerably younger than
herself. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). 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.
We note initially that, with regard to Issue No. 1, complainant is unable
to establish a prima facie case of age discrimination because the selectee
was three years older than complainant. In any event, with regard to all
of the Issues 1 through 4, we find that the prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its action. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Roberts v. Department of the Treasury, EEOC Appeal No. 01981908
(May 15, 2001). Regarding Issues 1, 2, and 3, the agency contends
that complainant was not eligible for the temporary maintenance control
technician position, MARS, and placement on the PER for the maintenance
control technician position, because these were restricted to members of
the maintenance craft to which complainant does not belong. The burden
therefore shifts to the complainant to prove, by a preponderance of the
evidence, that such legitimate reason is a pretext for discrimination.
See Burdine, 450 U.S. at 256. For the reasons provided below, we find
that complainant has not met this burden.
Complainant has essentially argued that she has worked many temporary
relief maintenance assignments over the years and that she should
therefore be considered as belonging to the maintenance craft. However,
she has presented no evidence demonstrating that other non-maintenance
craft employees have been considered as belonging to the maintenance
craft based on their past history of working in temporary maintenance
assignments. The agency has stated that employees may transfer to
the maintenance craft by submitting a written request for a permanent
transfer. There is no evidence showing complainant ever submitted such
a request, and indeed we note complainant has made no claim that she
ever did so.
Complainant has further argued that two non-maintenance craft employees,
one male and one female (ages and prior EEO activity unknown), have
been granted maintenance details in the past. The agency states,
however, that agency procedures allow for the temporary assignment of
non-maintenance craft employees to maintenance craft positions when there
are no maintenance craft employees available to fill such positions.
Indeed, as has already been noted, complainant herself has previously
worked numerous temporary assignments in maintenance craft positions.
Since the temporary detail at issue in this case was filled by an employee
who belonged to the maintenance craft, however, clearly the current
occasion was not one where there were no maintenance craft employees
available. Complainant has not alleged that the two non-maintenance
craft employees were granted maintenance details at times when maintenance
craft employees were available.
Complainant further argues that there are no female employees in the
maintenance craft at the agency's Elmira facility. She does not,
however, provide any information concerning how many qualified women
have applied for positions in the maintenance craft and have been
turned down. Nor does she indicate the size of the maintenance craft
at the Elmira facility. Clearly, the smaller the number of employees
in the maintenance craft, the less indicative of sex discrimination it
becomes that all maintenance craft employees are male. Standing alone,
however, the fact that there are no female employees in the maintenance
craft is insufficient to meet complainant's burden of establishing by
a preponderance of the evidence that the agency's reasons are pretext
for discrimination.
Regarding Issue No. 4, the agency does not deny that complainant, after
submitting a work improvement suggestion together with CW 1, did not
receive the award to which she was entitled, while CW 1 did receive
the award. The agency contends, however, that complainant was not
provided the award because of administrative error. The record includes
an affidavit from the administrative assistant (CW 2: female, age and
prior EEO activity unknown) responsible for processing work improvement
suggestions. CW 2, who worked in a separate agency facility, stated that
her responsibilities required her to log work improvement suggestions
into a computer program and assign each suggestion a specific number.
The program was designed to allow only one name and social security number
to be entered for each suggestion submitted. The program would compose
a letter notifying participants that their suggestion had been received.
The suggestions were then forwarded to the Employee Development Center
(EDC).
CW 2 stated that in May 1994, she received four suggestions submitted
jointly by both complainant and CW 1. She further stated that because
the computer program only allowed for one name per suggestion she
alternated the names, using only complainant's name when entering two of
the suggestions and only the name of CW 1 when entering the other two.
After all four suggestions had been forwarded to the EDC for evaluation,
only one was adopted, and that one contained only the name of CW 1.
CW 1 subsequently received the entire $25 award. CW 2 further stated
that agency policies required her to have issued a separate form in order
to divide the award in half and allocate one half to CW 1 and the other
half to complainant, but that she neglected to do so.
The agency has submitted copies of the four suggestions submitted by
complainant and CW 1, to which CW 2 referred above. Each suggestion
showed the names of both complainant and CW1. The agency also submitted
copies of the four acknowledgment memos that were routinely sent by the
agency to the employee offering the suggestion. In this case, however,
each memo listed just one employee name. Three of the memos, two of
which just listed complainant's name and the third of which listed just
CW 1's name, thanked the named employee for submitting the suggestion,
and notified the employee that the suggestion would not be adopted.
The fourth, listing just the name of CW 1, notified him that the
suggestion would be adopted, and that he would receive an award.
We find that this physical evidence substantiates the statements of CW 2.
The agency has therefore articulated a legitimate, nondiscriminatory
reason for its action. The burden therefore shifts to the complainant
to prove, by a preponderance of the evidence, that such legitimate
reason is a pretext for discrimination. See Burdine, 450 U.S. at 256.
Complainant contends that her name was deliberately left off the award by
the Elmira plant manager (RMO: male, age 39, prior EEO activity unknown).
She has sought to show pretext essentially by arguing that the length of
time it took the agency to uncover the original suggestion she submitted
with CW 1, showing both their names, demonstrates bad faith on the part
of the agency. In addition, she has argued that suggestions she has
submitted on her own have never won awards, that others have won joint
awards, and that the signature of RMO appears on the acknowledgment
memos while the signature of CW 2 does not.
We find that complainant has not met her burden of establishing by a
preponderance of the evidence that the agency's reason is a pretext
for discrimination. Neither the fact that others may have won joint
awards, nor the fact that complainant has not won any awards for
suggestions offered on her own, indicates that the agency's contention
of administrative error is in fact a pretext for discrimination.
Furthermore, the appearance of RMO's signature on the award memo does
not indicate he deliberately took complainant's name off the award,
nor does it cast doubt on CW 2's statement that she mistakenly left
complainant's name off the suggestion.
Complainant has not shown that there is a genuine issue of material fact
in this case. Regarding Issues 1, 2, and 3, complainant has provided
no evidence that she was a member of the maintenance craft, or that the
agency was willing to consider other non-maintenance craft employees
as belonging to the maintenance craft based on their past history of
working in temporary maintenance assignments. Nor has she provided any
evidence that non-maintenance craft employees were granted maintenance
details at times when maintenance craft employees were available for
those positions. Regarding Issue No. 4, she has provided nothing which
contradicts the record evidence of administrative error.
Complainant argues on appeal that the agency did not fully comply with
the AJ's Order for production of documents, and that an adverse inference
should be drawn against the agency pursuant to 29 C.F.R. � 1614.109(f)(3).
Complainant further contends on appeal an agency witness committed
perjury, and that the AJ demonstrated bias by not including complainant
in a teleconference meeting between the AJ and agency representatives.
We note, however, that all of these matters address complainant's
ability to establish a prima facie case. Both the documents requested
from the agency and the witness' affidavit address whether or not
complainant had taken or passed various examinations to qualify her for
maintenance positions. Furthermore, by complainant's own account, the
subject of the teleconference meeting was whether or not complainant
had established a prima facie case. The AJ, however, accepted that
complainant was qualified for the position in question and proceeded
directly to the issues of whether or not the agency had articulated
legitimate nondiscriminatory reasons for its actions and whether or not
complainant had established pretext. As noted above, where the agency
articulates legitimate and nondiscriminatory reasons for its actions,
the prima facie inquiry may be dispensed with. See Aikens, 460 U.S. at
713-17; Roberts v. Department of the Treasury, EEOC Appeal No. 01981908.
While complainant should have been included in the teleconference, we are
not persuaded that the AJ erred in issuing a decision without a hearing.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's age or sex. We discern no
basis to disturb the AJ's decision. 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 agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 10 2001
__________________
Date
1 Complainant has also maintained that the agency discriminated against
her when she was denied a permanent position as a maintenance control
technician. We note, however that she did not dispute the October 24,
1994 correspondence from the agency notifying her that the investigation
would be restricted to the issues 1 through 4 as described above and
made no mention of the permanent position. Accordingly, we find that it
was not an abuse of discretion for the Administrative Judge to decline to
accept the issue of the denial of the permanent position as a maintenance
control technician.