0120113998
02-01-2013
Patricia O. Holmes, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Patricia O. Holmes,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120114332
Hearing No. 532-2009-00161X
Agency No. 4C-440-0126-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 12, 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), Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Networks Specialist, EAS-16, at the Agency's Atlanta, Georgia Processing and Distribution Center.
On October 19, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (stress), color (Black), age (over 40), and in reprisal for prior EEO activity when:
1. on June 1, 2009, she was not selected for the position of Labor Relations Specialist;
2. on July 2, 2009, she was issued a Letter of Warning in lieu of a seven (7) day suspension;
3. on July 2, 2009, her detail assignment as the acting Labor Relations Specialist ended; and
4. during Pay Period 14, the week of June 27, 2009 through July 3, 2009, she did not receive the full amount of higher pay for her detail assignment.
Following a hearing held on November 22 and 23, 2010, the AJ issued a decision on July 29, 2011, finding no discrimination. The AJ found that Complainant did not establish a prima facie case of race, sex, color, age and reprisal discrimination.1 The AJ further found that assuming arguendo Complainant established a prima facie case of race, sex, color, age and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. On August 12, 2011, the Agency fully implemented the AJ's decision in its final action.
Regarding claim 1, the AJ noted that seven candidates, including Complainant, applied for the position of Labor Relations Specialist. Complainant's former Labor Relations supervisor (LR supervisor) testified that she was the selecting official for the subject position. The record reflects that the LR supervisor stated that the subject position required someone with the ability to effectively communicate with all levels of the organization, provide quality services to customers, the ability to be a team player, the ability to meet deadlines in a timely manner and possess a clear understanding of the Labor Relations programs and other agency policies and procedures.
The LR testified that while the six other candidates had a higher employment level, Complainant was the only candidate with Labor Relations experience. The LR supervisor stated that Complainant was the only candidate that was interviewed for the subject position because she wanted "to give [Complainant] another opportunity."
The LR supervisor stated that Complainant did not do well during her interview because "she was not able to articulate the goals of the Postal Service, the area of the United States Postal Service and then she kept interrupting the interview with her cell phone. It kept making like a beep, beep sound and I would think that rule 101 would be to turn off your cell phone when you go into a meeting of that nature. And I had to ask her in a nice way, would you please turn it off? She did apologize. I don't know if she was - - what was going on, but she kept looking at it whenever I asked her a question, that sound would go off and she would immediately grab her phone." The LR supervisor further stated that she felt that Complainant had a sense of entitlement that the subject position was owed to her, and she was irritated at having to answer the interview questions. Furthermore, the LR supervisor stated that she did not select anyone for the subject position because it was "frozen."
The AJ noted that record reflects that during 2009, the Agency experienced a decline in mail volume which resulted in the number of EAS employees to be reduced (RIF), and that if the Agency could not find the impacted employees new jobs they would be involuntarily separated. The AJ noted that as part of an Employee and Labor Relations Manual (ELM) guideline for RIF avoidance, the HR manager, the District HR manager and the Office of Personnel Management are responsible for finding jobs for the impacted employees within their same level. The AJ noted that during his testimony, the HR manager stated that when this happens, Agency management generally freeze all vacant positions and try to match the impacted employees with another position at their level so they are not separated from the Agency.
The AJ further noted that the record reflects that on June 16, 2009, there was another posting for Labor Relations Specialist position. Complainant applied for the subject position. The AJ noted, however, the HR manager stated that the subject position had been cancelled because management was going to do a RIF avoidance. Therefore, Complainant was not interviewed for the subject position. The AJ noted that as part of the RIF avoidance, the HR manager accepted the non-competitive lateral transfers of two named female employees for the positions of Labor Relations Specialist. The AJ noted at that time, both named female employees were non-competitive transfers because the one employee was a level EAS-20 and the other one was a level EAS-19 before the transfers. The subject Labor Relations Specialist position was a level EAS-19 which was a lateral transfer for the first employee and a downgrade for the second employee. The AJ noted Complainant was a level EAS-11 at that time, so it would have been a jump of eight levels for her.
Regarding claim 2, the LR supervisor testified that she issued Complainant a Letter of Warning in lieu of a seven-day suspension for failure to follow instructions and unsatisfactory performance. Specifically, the LR supervisor stated that Complainant "would not submit weekly logs as instructed. She would not submit weekly read files to the [HR manager]. She would not submit an arbitration evaluation form to me as instructed by the area and that form was necessary for me to send to headquarters for their review. And she also did not meet and process her Step 2's as a Step 2 designee and according to article 15 of the national agreement."
Further, the LR supervisor stated that Complainant failed to adhere to her obligations as a Step 2 Management Designee in properly managing her grievance workload. The LR supervisor stated that on one occasion Complainant did not handle a grievance in a timely manner which resulted in "a huge monetary award. It was over twenty-five thousand dollars." The LR supervisor stated that Complainant failed to arbitrate more than one case during expedited hearings.
The LR supervisor stated even though she met with Complainant several occasions about her performance and attitude, her performance never improved. Moreover, the LR supervisor stated that during the relevant period, she also issued a Letter of Warning to a named Labor Relations Specialist for failure to follow instructions and unsatisfactory performance.
Complainant asserted that she had a mutual agreement between herself and the union that when Complainant and the union representatives would meet in Step 2 appeals, they would agree verbally not to call time limits on each other and the LR supervisor was aware of it. However, the LR supervisor denied this assertion. Specifically, the LR supervisor stated that she was never informed of any agreement between Complainant and the union.
The HR manager stated that when he became HR manager in 2007, the Atlanta Labor Relations office was "deplorable." Specifically, the HR manager stated that there were "74 lost dates, which means they had 74 opportunities to present cases to arbitrators but canceled the dates for whatever reason, therefore, creating a backlog of grievance. They're last chance agreements for attendance were horrible in the sense that they allowed an employee to take almost all of their earned sick leave as part of the agreement . . . This was an agreement that was supposed to correct attendance." The HR manager also stated that here was a backlog of Step 2 appeals for over 56 days and one of Complainant's appeals was nearly five years old.
The HR manager further stated that he made changes to resolve the problems, such as having the Labor Relations Specialists discuss their arbitration cases with him and send him a read file on every document that they created during each week so he could review their performance. The HR manager stated, however, Complainant "was one of the employees who rarely gave me a read file." The HR manager stated that whenever he receives read files from Complainant and a named Labor Relations Specialist, "they were very limited. Many times there was maybe one or two pieces of discipline in there and mostly settlements that they made at Step 2 or it would be one or two Step 2 decisions and when look at it, this is what you did in a week's work? If all you can do is generate six, seven, eight or nine documents, that's pretty poor performance. . . because the backlog just kept growing... The other specialists. . . would generate. . . at least 20 to 32 documents in the read file and you could understand and see that they were actually doing what they were supposed to do, which was meeting with the Union. . . and making decisions on Step 2's and moving the cases forward if necessary."
The AJ noted that the HR manager testified that he shared his dissatisfaction about Complainant's performance with the LR supervisor and that Complainant was wasting Agency resources by not conducting multiple arbitrations when she had the arbitrator scheduled for six hours per day. The AJ further noted that as a result of the continuing problems, the LR supervisor issued Complainant and the named Labor Relations Specialist the subject letters of warning.
Regarding claim 3, the LR supervisor stated that she removed Complainant from her detail assignment as Labor Relations Specialist because Complainant told her that she felt overwhelmed and would not be able to meet project deadlines. The LR supervisor stated that she relied on ELM Section 716.2 in her determination to end Complainant's detail. The AJ noted that the record reflects that Section 716.2 of the ELM states "[a] temporary assignment may be terminated at any time, either at management's discretion or at the employee's request."
Complainant's asserted that she was discriminated against when she was asked to leave her detail assignments which two named employees were allowed to remain detailed Labor Specialists because one is fair skinned and the other one is white. The LR supervisor denied this assertion. Specifically, the LR supervisor stated "I didn't treat them any differently. Their work performance speaks for themselves. I had no reason to issue [named employee] nor [named employee] any corrective action on their discipline and I had no reason to end their detail. They were performing over and beyond the expectations, so why would I even issue them corrective action?"
Regarding claim 4, the AJ noted that the LR supervisor stated that she did not notify anyone to remove Complainant from the higher pay grade. In her affidavit, the LR supervisor stated that Complainant "had submitted to me a Form 1723 for the month of June, which I submitted to the TACS Manager. The 1723 indicated her detail was from June 1-3, 2009. She did not submit to me a 1723 for the month of July. She never brought it to my attention that she did not receive all of the higher level pay before my detail assignment ended. This i[s] the first I have heard about this. I was not afforded an opportunity to investigate this matter. If there was an error, she could have notified my replacement."
The AJ noted that on July 3, 2009, Complainant received an email from a named employee of the TACS office explaining that her detail was scheduled to expire on July 3, 2009, and advised her that she needed to complete another Form 1723 to receive the remainder of her pay interrupted. The AJ further noted that the record does not reflect whether or not Complainant completed the Form 1723 for July 2009 as instructed.
Complainant, on appeal, argued that the AJ erred finding no discrimination. For instance, Complainant argued that the AJ erred when she determined that Complainant was qualified for the Labor Relations position "however, she was not selected by [LR supervisor] because of poor responses to interview questions and she failed to discharge her duties conscientiously and effectively while acting in the labor relations position." Specifically, Complainant argued that she received a mid-year evaluation during the relevant period and it showed "no unsatisfactory or negative evaluation given of the complainant's performance." Moreover, Complainant argued that the Agency witnesses were "evasive, non-credible, and had conflicting testimony."
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
February 1, 2013
__________________
Date
1 The record reflects that during the hearing, Complainant withdrew disability as a basis.
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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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