01a54556
11-08-2005
Patricia A. Lilly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. Lilly v. United States Postal Service
01A54556
11-08-05
.
Patricia A. Lilly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54556
Agency No. 4J-606-0064-04
Hearing No. 210-2005-00115X
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that during the relevant time, complainant was
employed in a temporary Casual position at the Lincoln Park Station of
the agency's Chicago Post Office. Complainant sought EEO counseling and
after mediation attempts failed, filed a formal EEO complaint on February
20, 2004. Complainant amended the complaint on June 24, 2004, alleging
that the agency discriminated against her on the bases of sex (female)
and in reprisal for prior EEO activity (arising under Title VII) when:
She was told she had worked past her �Not to Exceed� date for her job
appointment period and management did not give her the Standard Form
8 on January 5, 2004;
Her supervisor told her to punch out and go home and informed her she
would only be working four hours a day on February 19, 2004; and
Her supervisor verbally informed her she was terminated from employment
and no longer worked for the Postal Service on June 19, 2004.
Complainant claims that males and other similarly situated employees
who had not engaged in prior EEO activity were treated more favorably
under similar circumstances.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 17, 2005, the AJ issued an Order
dismissing complainant's request for a hearing because of her failure to
prosecute the complaint, and further ordered the agency to issue a Final
Agency Decision. The agency issued a Notice of Final Decision on May 2,
2005, finding no discrimination.
The agency concluded that complainant failed to establish a prima facie
case of both sex discrimination and retaliation. Specifically with
regard to the sex discrimination claim, the agency determined that
complainant failed to identify similarly situated employees not in
complainant's protected classes who were treated differently under
similar circumstances. Complainant claimed that male employees had been
working for years without being terminated, but did not provide specific
names or identify such males, and the record reflected complainant was
treated similarly to four employees who were given casual appointments
in the same period. With regard to the retaliation claim, the agency
found that complainant failed to establish the elements of a prima facie
case because she did not show a causal connection between her protected
activity and her reduction in work hours and subsequent termination.
The agency found no evidence that management was untruthful or attempted
to cover up illegal discrimination, and complainant provided no evidence
the supervisors knew of complainant's protected activity. Nevertheless,
the agency further determined that even if complainant had established
a prima facie case of sex discrimination and retaliation, she failed
to rebut the agency's articulated legitimate, nondiscriminatory reasons
for the actions taken.
On appeal, complainant contends that the agency erred in its final
decision. She states that she did establish a prima facie case of
discrimination because she is a member of a protected class, and her
employment was terminated while other similarly situated employees
received preferential treatment. She states the record shows a reduction
of her work hours by her supervisor, while other similarly situated
employees' hours were not reduced, and management gave conflicting
statements as to notifying the complainant about the reduction of
work hours. Further, she was terminated after reporting mail was
inappropriately left in a relay box. Complainant also states she engaged
in a protected activity by participating in the EEO process, and �it is
inconceivable to anyone knowing human nature� that her supervisors did
not know or confer about this protected status. Complainant's Statement
on Appeal at � 4. Complainant maintains her work hours were reduced
because of this protected activity, and management eventually retaliated
by terminating her.
In response, the agency maintains the position it took in its Notice
of Final Decision, claiming that the agency was correct in determining
complainant failed to establish prima facie cases of discrimination or
retaliation, and the articulation of legitimate, non-discriminatory and
non-retaliatory reasons were appropriately concluded. These reasons
continue to remain unrebutted by the complainant, and she failed to
establish the actions taken were not credible or were a pretext to cover
prohibited discrimination. For these reasons, the agency requests that
we affirm its final decision.
LEGAL ANALYSIS
As this is an appeal from a FAD issued without a hearing, pursuant to 29
C.F.R. � 1614.110(b), the Commission shall review the agency's decision
based on a de novo standard. 29 C.F.R. � 1614.405(a). In arriving at
our conclusion, we are free to accept or reject the factual conclusions
and legal determinations made by the agency in its final decision,
and issue a decision based on our own assessment of the record and its
interpretation of the law. See EEOC Management Directive 110, Chapter 9,
� VI.A. (Nov. 9, 1999).
Sexual Discrimination Claims
To prevail in a disparate treatment claim such as this, when there
is absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof is a three-step process.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
Complainant must initially establish a prima facie case of discrimination
by presenting facts that: (1) she is a member of a protected group;
(2) she suffered some adverse action; and (3) she was treated less
favorably than similarly situated individuals not in her protected group
or establish other circumstances that reasonably give rise to an inference
of discrimination. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253-54 (1981); Furnco Construction Co. v. Waters, 438
U.S. 567 (1978). Evidence that the same management officials afforded
more favorable treatment to an employee outside of the complainant's
protected group under similar circumstances is of particular significance.
See Furnco Construction, 438 U.S. 567. To show someone is similarly
situated, all relevant aspects of complainant's employment must be nearly
identical to those of the comparative employees. See O'Neal v. U.S.P.S.,
EEOC Request No. 05910490 (July 23, 1991).
If the complainant establishes a prima facie case, the burden then
shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. See Burdine, 450 U.S. at 253-54. The agency
need only offer evidence showing its actions were justifiable. Id.
If the agency successfully articulates a nondiscriminatory reason,
the complainant must prove by a preponderance of the evidence that
the agency's explanations are pretextual. See id. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993); McDonnell Douglas,
411 U.S. at 804. The ultimate burden of proving discrimination remains
with the complainant at all times. See Hicks, 509 U.S. at 519.
Applying these standards to the instant case, we cannot conclude that
complainant has met her burden of establishing by a preponderance of the
evidence that the agency actions were a result of unlawful discrimination
based on her sex or prior EEO activity. As to complainant's first
claim, the Commission agrees with the agency's determination that
complainant failed to establish the last prong of a prima facie case of
discrimination because she was unable to prove that a similarly situated
employee received preferential treatment. Complainant provided no names
of comparison casual employees who had �been working for years without
being terminated.� See AF, Tab 2, Counselor's Report at 6, Affidavit
A. The record shows no names of any employee who was allowed to work
beyond the expiration dates of their casual appointments.
Further, the agency determined that complainant failed to provide
information regarding her claim as to unemployment compensation.
Complainant provided no evidence of who she believed discriminated
against her when she did not receive the Standard Form 8, and provided
no comparison data as to similarly situated employees being treated more
favorably. The procedures for Standard Form 8 require issuance by the
separating personnel office on the employee's last workday to ensure a
employee's eligibility for unemployment compensation. The agency found
station management were unfamiliar with providing such paperwork, as the
personnel office is responsible for explaining unemployment eligibility
under the established guidelines. Complainant's casual appointment expired
December 31, 2003, and was renewed immediately effective January 1,
2004. Providing complainant with a Standard Form 8 was moot given the
record shows no break in service between the two appointments.
Regarding the second and third claims, the Commission also agrees with
the agency's finding that complainant failed to establish a prima facie
case of sex discrimination. Complainant maintains that on February 19,
2004, several supervisors informed her she was taking too long to work
daily assignments and told her to clock out, and subsequently reduced
her hours, while career employees received special treatment but did
not work as hard. Complainant again provided insufficient information
on similarly situated employees who received preferential treatment as
to hours worked. Complainant has not identified similarly situated
employees who were also having problems finishing their duties but
who were allowed to work full shifts. In her third claim, complainant
alleges that she was verbally informed of her termination on June 19,
2004, although her casual appointment record officially expired on June
28, 2004, but no discrimination was found as she was terminated for cause.
Assuming arguendo that complainant established a prima facie case of
discrimination, the agency has articulated legitimate nondiscriminatory
reasons for the actions taken. The record clearly notes that complainant
was not terminated on January 5, 2004, but was reappointed to another
89-day casual appointment. The agency correctly maintains that there
would have been no reason to provide complainant with unemployment forms
at that time. Additionally, although complainant was reappointed to
casual appointments in both January and March, the record reflects that
her supervisors remained unsatisfied with her performance throughout
that period. As to her claim that she was told to clock out and her
hours were subsequently reduced, management stated that the decision to
reduce her hours was due to her inability to perform consistently with
the level of other carriers. The record provides evidence that multiple
supervisors stated her performance was poor, pointing to her inability
to perform her required assignment appropriately, while other casuals
were completing multiple assignments in the same amount of time or less.
From the beginning of complainant's first term, management informed her
she was taking too long to perform her delivery assignments, and she was
cautioned along with other unit casuals that her street performance
required improvement or hours would be limited. Her supervisors
maintained that complainant's inefficiency in completing her duties
mandated a reduction in hours, and despite notification to complainant,
her performance level remained below par.
As to complainant's claim of discriminatory termination, management
provided legitimate and nondiscriminatory reasons that even after
being given fewer assignments than other casual employees, her street
times continued to expand without authorization or justification.
Multiple incidents of returning with undelivered mail to the station
and leaving mail in the relay box were documented. The decision
to terminate complainant was made based on her consistent and
well-documented inability to perform her assigned duties, even
after being given repeated opportunities to improve her performance.
Finally, complainant failed to submit sufficient evidence to rebut the
agency's legitimate nondiscriminatory reasons for reducing her hours
and subsequently terminating her, and has therefore failed to provide
any evidence of pretext.
Retaliation Claims
The Commission also agrees with the agency's finding that complainant
failed to establish a prima facie case of retaliation. In a reprisal
claim, according to the burdens set forward in McDonnell Douglas,
complainant may establish a prima facie case of reprisal discrimination
by showing that: (1) she engaged in a protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmore v. Dept. of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The nexus
may be shown by evidence that the adverse treatment followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Clay v. Dep't of Treasury,
EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Complainant failed to establish a prima facie case of retaliation because,
although it is clear from the record that a few supervisors were aware
that complainant had engaged in prior EEO activity, there is no evidence
to support a nexus between her prior protected activity and the adverse
employment treatment, arguably her reduction in hours and termination.
The temporal proximity between an employer's knowledge of protected
activity and an adverse employment action must be �very close.� Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001). Where there is
strained temporal proximity between the time management gains knowledge
of a complainant's protected activity and management's adverse treatment,
the complainant must show additional proof of causality. See Battaglia
v. FDIC, EEOC Appeal No. 01985358 (July 30, 2001). Complainant claims
that her work hours were immediately reduced after mediation attempts
failed, but there is clear indication from the record that her reduction
in work hours was not implemented immediately after the EEO activity. The
record also reflects that following her prior EEO activity, complainant
was rehired for another casual appointment by the agency and worked over
four months before her termination. Such actions by the agency creates
this strained temporal proximity. Additionally, complainant provided
no additional evidence that the manager who ultimately terminated
complainant's employment had any knowledge of her protected activity,
which rebuts any inference of retaliatory discrimination.
The agency again correctly found that a legitimate, non-retaliatory
explanation was provided by management that complainant failed to
show pretext for. Complainant's work hours were reduced due to her
continued pattern of poor work performance, and the record again
reflects that pursuant to union collective bargaining agreements,
casuals have no set schedules or minimum work hour guarantees, as work
is only assigned to casual employees after career employees are fully
utilized. Additionally, the decision to terminate her appointment and
not recommend her for rehire as a carrier was due to her failure to
meet job requirements. Specifically, management noted complainant's
inability to follow instructions, her consistent pattern of prolonging
delivery on the street, and customer calls and complaints of missed and
late deliveries. The agency correctly noted these reasons were not due
to any retaliatory actions but complainant's inability to correct her
performance deficiencies. Complainant provided insufficient evidence
that the agency's reasons for its actions were merely a pretext to mask
intentional retaliation, and the complainant fails to present evidence
that her termination has motivated by retaliatory animus.
CONCLUSION
Accordingly, after a careful review of the record, the Commission finds
that complainant has failed to establish by the necessary preponderance
of the evidence that unlawful discrimination and retaliation occurred,
as the agency provided legitimate, nondiscriminatory and non-retaliatory
reasons for the actions taken which the complainant failed to show
were pretextual. Therefore, the decision of the EEOC is to affirm the
agency's final action finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701)
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), 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. � 1616.604(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 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
___11-08-05_______________
Date