0120131457
08-13-2013
Denyce Miller, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Denyce Miller,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120131457
Hearing No. 440-2011-00137X
Agency No. 56-000-013-10
DECISION
Complainant filed an appeal from the Agency's January 25, 2013 final order 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. 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 GS-13 Auditor at the Agency's Office of Inspector General Field Office in Carol Stream, Illinois.
On November 10, 2010, Complainant filed the subject formal EEO complaint. As amended, her complaint alleged that the Agency discriminated against her on the bases of race (African-American), national origin (American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In March 2009, her supervisor assigned her a difficult and vague audit;
2. From the summer of 2009 through November of 2009, her supervisor did not provide Complainant with the assistance she needed;
3. In May 2010, during her mid-year performance review, her supervisor told Complainant that Complainant had not adequately demonstrated that she could complete an audit and told her she would "be in trouble" if an assigned audit was not complete by July 2010;
4. During the audit, her supervisor changed the directions of the audit, changed her staff, and deliberately held up the progress of the audit;
5. The supervisor reassigned Complainant's leadership responsibilities to Complainant's team members and excluded Complainant from two audit interviews;
6. On November 29, 2010, the supervisor issued Complainant a negative Pay for Performance (PFP) evaluation for the fiscal year 2010;
7. During December 2010, the supervisor made additional derogatory comments regarding Complainant's performance; and
8. Between February 2, 2011 and February 22, 2011, the supervisor instructed a co-worker to review Complainant's work product to compile a list of Complainant's performance issues.
The pertinent facts are that Complainant reported to the Audit Manager (supervisor), who is named as the alleged responsible official. On, or about, August 14, 2008, the supervisor chastised Complainant for not reporting to the office as he had instructed the team to do. Complainant responded by accusing the supervisor of treating her differently than her coworkers (who were not in her protected EEO group) and asked why the supervisor did not require the other team members to be in the office. One of her coworkers is a Caucasian male, another is an African-born male, and the third is an Hispanic Caucasian woman.
Complainant is an African-American woman and American-born. The supervisor identifies himself as African-American. He identifies his national origin as a naturalized citizen of the United States
As further background, on December 15, 2008, Complainant emailed the Director to complain of the supervisor's disparate treatment to her and she asked to be moved to another team. On February 12, 2009, the Director met with Complainant to discuss her concerns. Thereafter, the Director discussed Complainant's concerns with the supervisor and counseled the supervisor as to his responsibility to provide feedback to Complainant.
In March of 2009, the supervisor assigned Complainant as Auditor-in-Charge of the Competitive Business Audit. He instructed Complainant that the audit had to be completed by July 2009. During the process, Complainant's supervisor was being pressured to complete the audit; and the supervisor was also receiving criticisms regarding Complainant's repeated requests to management for information that management believed had already been provided.
The record shows that the audit was not completed within the assigned time; and the supervisor issued Complainant criticism regarding the delay in the project during her mid-year evaluation.
The record also shows that the Supervisor assigned other auditors to assist Complainant, but Complainant was not the only auditor who received assistance from other auditors. The record shows that the supervisor sometimes used a peer review process. Complainant was given a lower performance rating.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for summary judgment and Complainant filed a response on November 28, 2011.
The AJ issued a decision without a hearing finding no discrimination. The AJ concluded that with the exception of issue 6 (i.e. the FY 2010 performance review), Complainant did not show that she suffered an adverse action on account of her race, gender or national origin. The AJ further found that the "other challenged conduct (e.g., assignment to a difficult audit, having to work a eight hour schedule for six weeks, requiring Complainant to provide regular status reports, changing her staff on the audit, and changing the direction of the audit) does not amount to an adverse action." The AJ reasoned that "Complainant admitted that the challenged conduct had not resulted in a loss of any employment opportunity."
The AJ next found that, even assuming that the alleged actions were sufficiently adverse, Complainant did not raise a genuine issue of material fact as to whether the actions were based on her race, gender, or national origin. The AJ found that Complainant did not identify a similarly situated employee who was treated more favorably, although the AJ noted that Complainant claimed that three auditors were treated more favorably. The AJ noted that one of the comparators is of the same gender and the other the same race. The AJ then found that "Most of the challenged conduct directly relates to the fact that the Competitive Business Audit was seriously behind schedule;" and Complainant did not offer evidence that the comparable employees faced similar deadlines, or, that but for the supervisor's interference, Complainant would have been able to complete the audit on time.
Next, the AJ found that the Agency articulated a nondiscriminatory explanation for the challenged conduct: that the actions were "because Complainant had not made sufficient progress on the Competitive Business Audit." The AJ noted that "Complainant concedes that the audit was two years behind schedule and that she never in fact completed the audit." The AJ found that Complainant did not offer sufficient evidence of pretext to raise a genuine issue of material fact" and the "record supports the Agency's nondiscriminatory explanation."
The AJ also stated that she drew all reasonable inferences in Complainant's favor, but "it is not reasonable to infer from this record that [the supervisor] would intentionally undermine his own job performance in order to discriminate against Complainant."
With regard to the retaliation claim, the AJ found that Complainant did not raise a genuine issue of fact as to whether her EEO activity triggered the challenged conduct. The AJ found that the evidence demonstrates that the low rating at the end of 2010 was a response to the late audit and upper management's criticism of the quality of Complainant's work product, rather than to Complainant's previous discrimination complaint.
With regard to the harassment claim, the AJ concluded that Complainant did not raise a genuine issue as to whether the alleged harassment was sufficiently severe or pervasive, did not raise a genuine issue of fact as whether the underlying incidents were based on her race, gender, national origin or EEO activity and did not raise a genuine issue was to a basis for employer liability.
The AJ found that the matter was appropriate for summary disposition and granted the Agency's motion for a decision without a hearing.
The Agency's final action implemented the AJ's decision.
This appeal followed.
ANALYSIS AND FINDINGS
We must first 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.
On appeal, Complainant does not dispute that the audit was not completed within the required time period, but she maintains that the problems that arose during the audit were completely unrelated to Complainant's performance and were outside of her control. She challenges the legitimacy of the Agency's stated reason.
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.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including reprisal. In a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and 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). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(b) provide "No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act . . . or the Rehabilitation Act."
Complainant must first establish her prima facie claims to shift the burden to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. In this case, Complainant did not identify anyone similarly situated who received better treatment than the Agency provided to her.
For purposes of our analysis, however, we will assume that Complainant established the elements of her prima facie case of reprisal and race, sex, and national origin discrimination.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation that provided an opportunity for Complainant to satisfy her ultimate burden of proof of pretext. The Agency met its burden because the Agency articulated its reasons for the supervisor's actions The Agency's stated reasons was the Agency found Complainant's performance to be unsatisfactory because she failed to complete the assigned audit within the time requirements It was undisputed that the audit was behind schedule and that no other employee had such a long delay. There is no evidence that this reason was a pretext for any discrimination or reprisal.
Finally, there is no evidence that the supervisor delayed or intentionally hindered Complainant's progress or created an unlawful hostile work environment.
Reviewing the record as a whole, we find that the preponderance of the evidence supports the Agency's finding of no discrimination.
Accordingly, the Commission AFFIRMS the Agency's final decision.
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 13, 2013
__________________
Date
2
0120131457
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131457