0120131263
06-19-2013
Karen M. Kim, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Karen M. Kim,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120131263
Agency No. 6F-000-0005-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 22, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Purchasing and Supply Management Specialist at the Agency's Category Management Center in Greensboro, North Carolina.
On May 29, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
1. on March 28, 2012, her recourse appeal for her 2011 Performance Evaluation rating of 4 was denied; and
2. on April 3, 2012, she was issued a Letter of Warning (LOW) for unacceptable and insubordinate behavior.1
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On January 22, 2013, the Agency issued the instant final decision dismissing claim 2 pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds of mootness. The Agency then nevertheless addressed the formal complaint on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the Manager, Telecom & IT Hardware, stated that on February 17, 2012, she informed Complainant of her 2011 rating, and that on February 23, 2012, Complainant asked the Manager what Complainant's recourse was if she did not agree with the rating. The Manager advised Complainant that she had to go into the Performance Evaluation System (PES) and request recourse. The Manager stated that on February 24, 2012, Complainant's Team Leader informed her that he had received a system notification that Complainant had submitted a ratings recourse and that he had a discussion with Complainant on February 28, 2012. The Manager stated that Complainant "was not satisfied with the results of that discussion and came to me for a subsequent discussion later that day. A lengthy discussion ensured in which [Complainant] brought up a number of topics not relevant to her rating. I asked her if she had any additional information on her FY2011 performance that was not already considered in her rating, and she was unable to support any basis for an appeal. I therefore denied her appeal."
Further, the Manager stated that during the 2011 fiscal year, the corporate-wide average was 4.2. The Manager stated that in her work unit, management was told all ratings added together could average no more than 5, and "the 'contributor' rating is normally defined as 409, but in FY2011 the average USPS rating was so low that HR announced an exception, that a '3' rating would be considered the low end of the 'contributor' scale. In our office ratings ranged from 3-6, with no rating higher than 6." The Manager stated that due to the salary freeze in the 2011 fiscal year, "no one would receive a merit increase in any event, regardless of rating."
The Manager stated that during the relevant period, Complainant's performance was characterized "by an 'average' performance. She supported the goals of the office by processing less complex transactions consistent with her job description and capabilities. Her work was unremarkable in either quantity or quality. Though she makes an issue of volunteering to help the other team at the end of the year, the truth is, she did not ask her own supervisor if this was appropriate, and the req. [requisition] log shows she was assigned only one requisition for the other team, which was of a minor transactional nature, with no documented savings. A rating of '4' indicates that she was a contributor."
The Team Leader stated that prior to the Performance Evaluation ratings being issued to his members, he met with the Manager and "discussed the team's performance and my evaluation of where I believed each member ranked. It wasn't a final score because the office has to average as a whole and I don't have knowledge of other team's scores. I did concur with [Manager's] decision about where my team members ranked." The Team Leader stated that Complainant was rated a Level 4 "in accordance with her level of effort and responsibility."
The Team Leader stated that when Complainant appealed her performance rating, he "actively listened and responded. Viewed the Performance Evaluation System printout. Her transactional performance could not support a higher ranking considering the average overall was a five (5)."
With respect to Complainant's argument that she had the highest number of requisitions processed in the office and that she was the only employee who volunteered to assist another team at the year-end processing crunch, the Team Leader denied it. Specifically, the Team Leader stated that Complainant "had the highest level of transactions on my team but not the highest number considering other teams. Also, transaction count is not an indicator of level of effort, dollar value, or Supply Chain impact savings. In addition, you can really only compare transactional work to other transactional work and this is not the higher level, more complicated work performed by EAS 23 Purchasing Specialists."
Further, the Team Leader stated that he was not sure if Complainant was the only employee who volunteered to assist another team. The Team Leader stated that if Complainant volunteered another team, "she failed to discuss the issue with me to see if I was okay with it considering she had to be removed from his team or if we had additional work opportunities on her team."
Regarding claim 2, the Manager stated that she was the deciding official to issue Complainant a LOW for unacceptable and insubordinate conduct. Specifically, the Manager stated that on March 21, 2012, the Team Leader came into her office "highly upset because [Complainant] had called him a 'bullying Hitler.' [Team Leader] is of German descent, [and] he indicated that he considered the remark to be an ethnic slur. [Team Leader] explained that he was having a discussion with [Complainant] about her prior allegation that she is 'not treated fairly.' In response to his question asking her to elaborate, she said, 'you treat me like a bullying Hitler.'"
The Manager stated that she knew she was responsible for taking action and stopping behavior "which includes demeaning or abusive language. My first responsibility was to verify the accuracy of [Team Leader's] allegations as soon as [Complainant] was available for a meeting. My schedule for following morning was disrupted, as I conducted an unplanned meeting with [Complainant], who did not deny making the remark."
The record contains a copy of the Letter of Warning dated April 2, 2012. Therein, the Manager notified Complainant that she was in violation of Sections 665.13 and 665.16 of the Employee and Labor Relations Manual. The record reflects that Section 665.13 sates "employees are expected to discharge their assigned duties conscientiously and effectively." The record further reflects that Section 665.16 states "employees are expected to maintain harmonious working relationships and not to do anything that would contribute to an unpleasant working environment."
The Team Leader stated that the Manager informed him that she had to separate Complainant and her former Team Leader, and that he would be getting Complainant on his team. The Team Leader further stated that after Complainant assigned to his team for a time, he asked her to into his office one day "so I could get some feedback on whether she believe she was being treated more fairly on my team. She was hesitant respond but finally said I wasn't treating her fairly either and said I was just a 'Bullying Hitler.' This came as quite a surprise considering I had gone out of my way to recognize her work in front of the entire office including [Manager] the office manager...it was then I realized the only thing that would make [Complainant] happy was to get a promotion to the EAS 23 so she could get her pay increased. However, given [Complainant's] performance, problems working with management and others, and her limited education she was not a good prospect for promotion. As a result of her calling me a 'Bullying Hitler' I asked that she be issued a letter of warning as I consider the comment to be disrespectful and unprofessional."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
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
June 19, 2013
__________________
Date
1 The record reflects that as a result of a grievance Complainant filed, the LOW was removed from Complainant's personnel file.
2 Because we affirm the Agency's finding of no discrimination concerning claim 2 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. mootness).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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