0120112885
10-07-2011
Michelle N. Demas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Michelle N. Demas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120112885
Hearing No. 461-2010-00027X
Agency No. 4G-700-0151-09
DECISION
On May 5, 2011, Complainant filed an appeal from the Agency’s April 7,
2011, final action 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. For the following reasons,
the Commission AFFIRMS the Agency’s final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Manager, Budget/Financial Analysis (EAS-22) at the Agency’s Louisiana
District Office.
On September 12, 2009, Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her on the bases of sex
(female), color (dark brown), and age (48) when on or around May 6,
2009, she became aware that her manager changed the submission of her
recourse request for her merit rating from a “9” to an “8”.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s July 21, 2010, Motion for
a Decision Without a Hearing and issued a decision without a hearing on
March 28, 2011.
The AJ found that no discrimination occurred. AJ’s Decision at 12.
The AJ stated that EAS employees are judged under a 15 point performance
evaluation system with the following ratings: Exceptional Contributor
– 13, 14, 15; High Contributor – 10, 11, 12; Contributor - 4-9; Non
Contributor – 1, 2, 3. Id. at 3. Each of the 15 points represents
a different pay increase. Id. Complainant’s rating for Fiscal Year
2008 reflected a NPA composite summary of 6.74, which was changed to
a final score of 6.77 by the Acting District Manager. Id. This was
rounded to a “7”. Id.
The AJ observed that Complainant subsequently submitted a recourse
request seeking a change in her final rating to a “9”. Id. at 4.
Complainant provided a statement in support of raising her rating in each
of the four core requirements. Id. Complainant’s manager changed the
requested recourse to reflect a rating of 8.43, rounded to an “8”,
after discussing the matter with the Acting District Manager. Id.
This rating was based on a change in Complainant’s core requirement
ratings to 13, 13, 13 and 10. Id. Complainant’s ratings meant
she was in the category of an “exceptional contributor” for the
first three core requirements and “high contributor” for the final
core requirement. Id. at 5. The AJ noted that Complainant’s manager
issued to the Finance Unit employees six ratings of “8”, two ratings
of “7” and one rating of “5”. Id.
The AJ found that Complainant failed to establish a prima facie case of
discrimination under the alleged bases. Id. at 10-11. The AJ observed
that the two comparisons cited by Complainant were only fourteen months
and a few months younger than Complainant, respectively. Id. at 10.
Thus, the AJ found that Complainant failed to establish a prima facie case
of age discrimination as she did not show that employees outside of her
protected age class were treated more favorably or that employees within
her protected age class, but substantially younger than her, were treated
more favorably. Id. With regard to the claim of sex discrimination,
the AJ stated that the only male employee rated by the manager received
a “7” and therefore was not treated more favorably than Complainant.
Id. at 10-11. As for the claim of color discrimination, the AJ noted
that one of the comparisons was supervised and rated by Complainant
and that the other two comparisons had different jobs than Complainant.
Id. at 11. Thus, the AJ concluded that none of the three comparisons
were similarly situated to Complainant. Id.
The AJ found that Complainant failed to establish that she was
discriminated against in her initial rating. Id. According to the AJ,
the rating process for the core requirements involved an interaction
between Complainant and her manager where they would attempt to reach
agreement on how to quantify largely subjective factors. Id. The AJ
reasoned that although the result of Complainant’s recourse request was
a higher score for her than her initial rating, this did not establish
an inference that she was discriminated against in the initial rating.
Id. at 11-12. Rather, the AJ stated that this demonstrated the rating
process was interactive and ultimately successful. Id. at 12.
The Agency subsequently issued a final action wherein it implemented
the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. Thereafter, Complainant
filed the instant appeal.
In response, the Agency asserts that Complainant failed to establish
a prima facie case of discrimination under each of the alleged bases.
With regard to the age discrimination claim, the Agency states that the
two younger comparisons were both over 40 years of age and neither was
substantially younger than Complainant. Further, the Agency notes that
neither of these comparisons was similarly situated to Complainant as
they did not hold the same position or EAS level as Complainant. As for
the sex discrimination claim, in addition to one of the aforementioned
comparisons not being similarly situated to Complainant, the Agency states
that this male comparison received the same initial rating of “7”
that Complainant received, and that following Complainant’s recourse
request, Complainant had a higher rating than the male comparison.
With respect to the claim of color discrimination, the Agency asserts
that none of the lighter skin comparisons held the same position or
were at the same EAS level as Complainant. Further, the Agency states
that none of the comparisons received a higher rating than Complainant
following the recourse review.
The Agency states that it articulated legitimate, nondiscriminatory
reasons for the ratings assigned to Complainant. The Agency explained
that the ratings process of the various core requirements required an
evaluation of Complainant’s contributions toward specific goals.
The Agency notes that Complainant’s manager did not evaluate
her contributions as highly as she did. According to the Agency,
it recognized Complainant’s contributions given that Complainant
received ratings of “13” for three of the four core requirements.
The Agency states that Complainant requested ratings of 14, 15 and 15 in
these core requirements. With regard to the remaining core requirement,
the Agency states that Complainant requested a “12” and received
a “10”. The Agency explains that based on her ratings, Complainant
had a final score of 8.43, which rounded to an “8”. The Agency notes
that although Complainant requested a rating of “9”, none of the other
EAS employees evaluated by that manager received a rating above “8”.
The Agency maintains that Complainant failed to demonstrate that these
reasons were a pretext for discrimination.
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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
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).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regard to Complainant’s claim of disparate treatment based on sex,
color and age, we shall assume arguendo that she has set forth a prima
facie case of discrimination under each of the bases. We find that
the Agency articulated legitimate, nondiscriminatory reasons for the
manager’s change of Complainant’s recourse request from a “9”
to an “8”. The manager stated that he reviewed and discussed
the recourse request of an 8.95, rounding to a “9” with the Acting
District Manager. The manager stated that he subsequently submitted the
recourse request to the Acting District Manager with a rating of 8.43,
rounded to an “8”. That reflected a change from the initial rating
of 6.77, which had been rounded to a “7”. The Agency indicated
that its change to a higher score from the initial rating recognized
Complainant’s accomplishments as she received an “exceptional
contributor” rating in three of the four core requirements. The Agency
stated that none of the other EAS employees evaluated by the manager
received a rating above “8”.
Complainant argued that her contributions warranted her requested rating.
Complainant stated with regard to core requirement #1 that she decreased
the difference between Monday and Tuesday’s flash volumes. As for core
requirement #2, Complainant explained that she created awareness of the
Cluster performance through daily reporting and messaging on work hours,
overtime, sick leave and expenses. With respect to core requirement #3,
Complainant stated that she created reports and provided training to
pinpoint work hour overrun causes. With regard to core requirement #4,
Complainant argued that she utilized her oral and listening skills to
ensure that the products developed from her shop would result in the
necessary changes that have made the Cluster successful. Complainant
further claimed that the manager did not submit the recourse request
with her requested rating because the manager resented the fact that
she would not promote an individual with whom the manager had a personal
relationship.
Complainant argued for higher scores on her core requirements and the
Agency recognized that she deserved a higher rating than her initial
rating of “7”. Complainant was upgraded to an “8” and no employee
evaluated by her manager received a higher rating. Although Complainant
believes she deserved a “9”, we find that the evidence does not
establish that the manager’s refusal to submit a recourse request
for a “9” was unwarranted and suggestive of discriminatory intent.
Complainant has not established that her performance was so superior that
she merited a higher rating than anybody else. We find that Complainant
has not established, by a preponderance of the evidence, that the change
in her recourse request rating was attributable to discrimination on any
of the alleged bases. We find that the AJ’s summary judgment decision
was proper.
CONCLUSION
The Agency’s determination in its final action that no discrimination
occurred 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 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
October 7, 2011
__________________
Date
2
0120112885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120112885