Patricia M. Pogash, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.

Equal Employment Opportunity CommissionDec 14, 2001
01994444 (E.E.O.C. Dec. 14, 2001)

01994444

12-14-2001

Patricia M. Pogash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.


Patricia M. Pogash v. United States Postal Service

01994444

December 14, 2001

.

Patricia M. Pogash,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Mid-Atlantic Area),

Agency.

Appeal No. 01994444

Agency Nos. 4C-175-0028-97 and 4C-175-0035-97

Hearing Nos. 170-98-8094X and 170-98-8095X

DECISION

INTRODUCTION

Complainant timely initiated this appeal from the agency's final decision

(FAD) concerning her consolidated complaints 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. Complainant alleged in her first EEO

complaint (Agency No. 4C-175-0028-97) that she was discriminated against

on the basis of sex (female) when:

on November 15, 1996, she was advised that an Officer in Charge (OIC)

would be sent to her office to take over her duties due to allegations

made against her by several employees.

Complainant further alleged in her second EEO complaint (Agency

No. 4C-175-0035-97) that she was discriminated against in reprisal for

her prior EEO activity when:

on November 15, 1996, she was informed by her Post Office Operations

Manager (POOM) that she would be removed from her office, and the

allegations against her were not investigated in a timely manner; and

on or around January 2, 1997, the agency issued her a letter of warning,

in lieu of a fourteen-day suspension, for misconduct.

For the following reasons, the FAD is AFFIRMED.

BACKGROUND

The record reveals that complainant, a Postmaster at the agency's Tremont,

Pennsylvania facility, filed two formal EEO complaints alleging that the

agency had discriminated against her as referenced above. The agency

consolidated the complaints under Agency No. 4C-175-0028-97 and began

an investigation into complainant's claims. At the conclusion of the

investigation, complainant received a copy of the investigative report

and requested a hearing before an EEOC Administrative Judge (AJ).

Following the hearing, the AJ issued a decision finding no discrimination.

As to complainant's sex discrimination claim, the AJ concluded that

complainant failed to establish a prima facie case for this claim.

Specifically, the AJ found that complainant failed to demonstrate that

a similarly situated male employee was treated differently under similar

circumstances. Complainant had identified two male Postmasters, C1 and

C2, from other post offices, as similarly situated employees not of her

sex who had not been disciplined in the same manner as complainant.

The AJ noted that in complainant's effort to establish that C1 was

similarly situated to her, complainant produced two newspaper articles

discussing prior harassment charges filed against C1. The AJ found that

the articles were hearsay, that one of the articles was not presented in

its entirety, and there was no indication that the account contained in

the articles had any validity. The AJ further noted that the agency had

presented evidence that C1 was under the supervision of a POOM different

from that supervising complainant, that complainant's POOM had no role

in taking disciplinary action against C1, and there was no evidence

suggesting that anyone higher up in the agency's management structure had

anything to do with complainant's November 15, 1996 removal. The AJ also

found that complainant's efforts to establish C2 as a comparator were

inadequate, noting that the circumstances alleged to be surrounding the

discipline imposed upon C2 were not similar to those faced by complainant,

including a different POOM and no indication that complainant's POOM

had any role in the discipline imposed upon C2.

The AJ next addressed complainant's first reprisal claim, finding that she

had established a prima facie case.<1> The AJ also found that the agency

had articulated legitimate, nondiscriminatory reasons for its actions,

including establishing that the delays in the ultimate issuance of the

letter of warning were caused by complainant's failure to cooperate

with the investigation into the charges against her, the busy nature of

the agency's work during the time of year, and complainant's requests

for extensions of time in which to respond to the proposed discipline.

The AJ also found that the complainant failed to show that the agency's

proffered reasons were pretextual in nature.

The AJ further found that complainant had established her prima facie

case as to her second reprisal claim, and that the agency had articulated

legitimate, nondiscriminatory reasons for issuing the letter of warning in

lieu of a fourteen-day suspension. In making the latter finding, the AJ

pointed to testimony by agency officials that issuing a letter of warning

was appropriate under the circumstances, based upon the statements in the

investigation file, the investigation interviews which had been conducted,

and complainant's failure to respond to the information provided in those

statements and interviews. The AJ also noted that complainant failed to

establish that the agency's proffered reasons were pretext for unlawful

discrimination, as she provided no evidence demonstrating that the letter

of warning was inappropriate discipline under the circumstances.

The AJ concluded that complainant had failed to prove the agency had

discriminated against her as claimed. On April 5, 1999, the agency

issued its FAD, agreeing in full with the AJ's recommended decision

finding no discrimination.

On appeal, complainant claims that the AJ erroneously determined

complainant had not proven her case. The agency has not raised any

arguments on appeal.

ANALYSIS AND FINDINGS

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. 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 Constr. Corp. v. Waters, 438 U.S. 567

(1978). Next, the agency must articulate a legitimate, nondiscriminatory

reason for its action(s). Texas Dep't 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.

In order to establish a prima facie case of discrimination based on sex

and/or race, complainant must show that she is a member of a protected

group, that she was subjected to an adverse employment action, and that

she was treated less favorably than other similarly situated employees

outside of her protected group. Packard v. Department of Health & Human

Serv., EEOC Appeal Nos. 01985494, 01985495 (Mar. 22, 2001). To establish

a prima facie case of reprisal, complainant must show that she was engaged

in protected activity, the alleged discriminating officials were aware

of the protected activity, the complainant was subsequently subjected to

adverse treatment, and the adverse action followed the protected activity

within such a period of time that retaliatory motivation may be inferred.

Packard v. Department of Health & Human Serv., EEOC Appeal Nos. 01985494,

01985495 (Mar. 22, 2001) (citations omitted); see also Smithson v. Social

Security Admin., EEOC Appeal No. 01A03598 (Aug. 23, 2001). It is not

necessary for complainant to rely strictly on comparative evidence in

order to establish an inference of discriminatory motivation necessary

to support a prima facie case. O'Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor

v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4

(Sept. 18, 1996).

Applying this standard to the instant case, we agree with the AJ that

complainant has not met her burden of establishing by a preponderance of

the evidence that the agency actions at issue were the result of unlawful

discrimination based upon her sex or prior EEO activity. The evidence

presented by Complainant in support of her prima facie case of sex

discrimination consisted of the aforementioned newspaper articles about

C1, as well as complainant's own testimony that the agency disciplined C1

and C2 differently when they were investigated by the agency. Complainant

also testified, however, that her knowledge of such disparate treatment

was derived solely from the aforementioned newspaper articles about C1

and from a conversation with the employee who filed charges against C2.

No other evidence was presented by complainant as to C1 or C2, and none of

the evidence presented establishes that complainant had been treated less

favorably than her proffered comparators.<2> While the burden imposed

upon complainant in establishing her prima facie case is not onerous, it

is still a burden of proof by a preponderance of the evidence. Burdine,

450 U.S. at 252-53. As a result of the minimal evidence presented by

complainant in support of her claim, we cannot conclude that the AJ's

finding that complainant failed to meet her burden was erroneous.

We next turn to complainant's reprisal claims, and the AJ's finding

that the agency successfully rebutted complainant's prima facie cases

with a legitimate, nondiscriminatory reason for its actions. The burden

incumbent upon the agency to respond to complainant's prima facie case

with a legitimate, nondiscriminatory reason for its actions is a burden

of production, not persuasion. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000). However, in meeting its burden, the

agency must produce sufficient evidence to support a nondiscriminatory

reason for its explanation. Id. at 143. The agency's explanation must

be sufficiently clear to raise a �genuine issue of fact� as to whether

discrimination occurred. Burdine, 450 U.S. at 254. Moreover, it must

�frame the factual issue with sufficient clarity so that [complainant]

will have a full and fair opportunity to demonstrate pretext.� Id. at

255-256; Parker v. United States Postal Serv., EEOC Request No. 05900110

(Apr. 30, 1990) (citing Burdine, 450 U.S. at 256). While the agency's

burden of production is not onerous, it must nevertheless provide

a specific, clear, and individualized explanation for the treatment

accorded the affected employee. Lorenzo v. Department of Defense,

EEOC Request No. 05950931 (Nov. 6, 1997).

As to her first reprisal claim, complainant argues that the factual

record does not support the AJ's conclusion that the investigation was

completed in a timely manner, and that the delays in its completion were

caused in part by complainant's noncooperation with the investigation.

However, as noted above, there was sufficient evidence presented to

support the AJ's conclusion that the investigation was in fact completed

in a timely manner. Accordingly, we perceive no reason for disturbing

this finding on appeal.

Complainant also argues that, as to her second reprisal claim, the

evidence presented by the agency of why it chose to discipline complainant

with a letter of warning, rather than a fourteen-day suspension,

was insufficient to meet its burden of production. In support of this

argument, complainant points to the testimony of complainant's POOM, who

testified that the only reason he so chose to discipline complainant was

because the letter of warning �just seemed appropriate for the conditions

of what happened� and for no other reason. The POOM also indicated in

his testimony, as noted by the AJ in his decision, that the decision to

discipline complainant was based upon the information contained in the

investigation file.

We agree with the AJ that the agency has met its burden in regard to

this claim. The POOM testified that he made the decision to issue the

letter of warning based upon the circumstances of the charges filed

against complainant, as well as the information gained from the agency's

investigation of those charges. While the agency did not proffer its

reason in extensive detail, it cannot be said that it failed to frame

the issue with sufficient clarity to provide complainant a full and fair

opportunity to demonstrate pretext. This opportunity was not taken by

complainant, as she presented no evidence that either the discipline

imposed was inappropriate under the circumstances of the case, that there

was any causal connection between her EEO activity and the discipline

imposed, or any other evidence showing that the agency's proffered

nondiscriminatory reason was pretextual in nature.

We note that complainant also claims on appeal that she was unable to

establish her prima facie case of sex discrimination, or offer sufficient

evidence to show to show that the agency's articulated legitimate,

nondiscriminatory reasons in her reprisal claim were pretext, as a result

of her being denied access to effective discovery. Complainant claims

that, through interrogatories and requests for production of documents and

admissions, she sought such information from the agency, but the agency

did not comply with her requests, and the AJ previously assigned to the

case denied her motion to compel such discovery. EEOC Regulations provide

AJs with broad discretion in the conduct of hearings and the development

of the record, including such matters as discovery orders and the drawing

of adverse inferences and other sanctions. See 29 C.F.R. �� 1614.109(a),

1614.109(f)(3); Graham v. Department of Transportation, EEOC Appeal

No. 01986978 (Aug. 17, 2001); Malley v. Department of the Navy, EEOC

Appeal No. 01951503 (May 22, 1997). In ruling on complainant's motion

to compel discovery, the previously assigned AJ denied the motion in

part, and granted it in part. When the agency failed to fully comply

with the AJ's discovery order, she ordered as a sanction the drawing of

an adverse inference as to the discovery not provided by the agency,

as permitted under 29 C.F.R. � 1614.109(f)(3)(i). Accordingly, the

Commission concludes that the actions taken by the AJ did not amount

to an abuse of discretion. See Fried v. Department of the Treasury,

EEOC Appeal No. 01973225 (Apr. 26, 2000) (applying abuse of discretion

analysis to AJ's administration of a hearing).

In conclusion, the Commission agrees with the AJ that complainant

failed to meet her burden of proving her claims of discrimination

by a preponderance of the evidence, and therefore a finding of no

discrimination is appropriate. As a result, the Commission AFFIRMS the

FAD adopting in full the AJ's decision.

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 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

December 14, 2001

Date

1 We note that the AJ's decision also purports to address complainant's

claim that she was subjected to sex discrimination when the agency failed

to conduct its investigation into the charges leveled against her in a

timely manner. However, there is no indication in the EEO investigative

file that complainant ever raised such a complaint in the EEO process.

The AJ found the complainant had failed to establish a prima facie case

on such a claim, and thus found no discrimination on those grounds.

There is no record that the claim was ever presented to the agency

during the pendency of the EEO investigation, see 29 C.F.R. � 1614.106(d)

(permitting complainant to amend complaint, prior to the conclusion of

the investigation, to include �issues or claims like or related to those

raised in the complaint�), nor to the AJ subsequent to complainant's

making her request for a hearing, see id. (�[a]fter requesting a hearing,

a complainant may file a motion with the [AJ] to amend a complaint

to include issues like or related to those raised in the complaint�).

Accordingly, this claim was never properly before the AJ, and we will

not address it further on appeal.

2 Complainant argues on appeal that the AJ improperly minimized the

evidentiary weight to be accorded the newspaper articles, upon his finding

that they were hearsay. She claims that the AJ failed to undertake the

required analysis of whether the hearsay evidence is probative and/or

bears indicia of reliability. We agree that the rules of evidence

are not to be applied strictly in administrative proceedings before

the Commission, 29 C.F.R. � 1614.109(e), and that hearsay evidence is

not per se devoid of evidentiary value, Thomas v. Department of State,

EEOC Appeal No. 01932717 (June 10, 1994). We also agree that, in simply

concluding that the newspaper articles were hearsay, that he could not

place any evidentiary weight on information in a newspaper article,

and that there was no indication that the stories had any validity,

the AJ failed to engage in a proper analysis of whether the hearsay

evidence at issue was probative and bore any indicia of reliability.

Thomas v. Department of State, EEOC Appeal No. 01932717 (June 10, 1994).

However, we disagree with complainant that such constitutes reversible

error. Even assuming the articles are probative and bear any indicia

of reliability, their substantive content cannot be said to establish

that C1 was similarly situated to complainant. The most that can be

said of the newspaper articles is that they constitute evidence that C1

was a male employee of the agency who had engaged in improper conduct.

The allegations reported to have been leveled against C1 are different

than those leveled against complainant, and neither article makes any

mention of the discipline imposed upon C1 for his conduct. Therefore,

it is impossible to conclude that complainant and C1 were differently

disciplined for similar conduct. Accordingly, the evidence fails to

aid complainant in proving that C1 was a similarly situated employee.