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.