0320160009
02-10-2016
Alene S.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alene S.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Petition No. 0320160009
MSPB No. DE0752110006I1
DECISION
On September 12, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly decided that the Agency did not discriminate against Petitioner based on race and sex when it reduced her grade.
BACKGROUND
Petitioner worked as a Postmaster at the Las Cruces Post Office in Las Cruces, New Mexico. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American) and sex (female) when it reduced her grade from the position of Postmaster, EAS-24 to a position of Manager, Customer Services, EAS-22 on September 24, 2010.2
During the time that Petitioner was Postmaster; the Agency had a policy to respond to information requests from the unions, the American Postal Workers Union (APWU) and the National Association of Letter Carriers (NALC), within five days. The record shows that a copy of the August 15, 2008, Information Request Process was sent to Petitioner on August, 15, 2008, August 6, 2009, and February 5, 2010; however, Petitioner testified that she did not receive these.3 Petitioner also attended training on this topic on September 14, 2009, but stated that she arrived late and missed part of the training.
Petitioner delegated the "gatekeeping" function of the union information requests to one of Sales Service Distribution Clerks (Clerk1) who was responsible for maintaining a log of the requests. After supervisors received an information request, they would provide a copy to the relevant union representative and a copy to Clerk1, who would ensure that the information provided was correct and record it in the log.
An APWU Steward (APWUS) would regularly submit requests for information to her Supervisor (S1), who would then provide her the requested information. Both parties stated that they had a mutual informal agreement extending the deadlines for both of them. S1 testified that she considered all of her requests to be current based on this agreement. APWUS testified that she "very rarely" received responses to the requests in 2009. She stated that S1 would not even meet with her so she started to send her letters, via certified mail. The record shows that APWUS sent at least seven letters to S1, from October 30, 2009, through January 10, 2010, requesting to meet with S1 and/or requesting the information on the outstanding requests.
The APWU President (APWUP) testified that she met with Petitioner sometime in November 2009, to discuss the open requests and that Petitioner stated that S1 would provide the requested information. APWUP also testified that she sent Petitioner at least two emails regarding the information requests from October through December 2009, and that she would ask to meet when they saw each other on the workroom floor.
Petitioner testified that she informed the supervisors and managers to send her an email each Thursday containing any union information requests. She stated that when she did not receive any emails, she assumed that no requests had been submitted by the unions and would report that they had no outstanding requests. The record shows that Petitioner submitted weekly statements certifying that the Las Cruces Post Offices had no outstanding union information requests from October 9, 2009, through February 19, 2010.
On December 15, 2009, APWU filed a labor charge alleging that Petitioner failed and refused to provide them with information requests for the past six months. After learning about the labor charge, Petitioner sent an email to the supervisors and managers instructing them to send her an email, on a weekly basis, about any union information requests or inform her that they did not currently have any open requests.
On February 24, 2010, the acting Manager of Post Office Operation (MPOO) interviewed Petitioner to discuss the allegations made by the APWU. On March 29, 2010, MPOO issued Petitioner a proposed a reduction in grade for Unacceptable Performance. The specific charge stated that "[f]rom October 2009 through December 2009 you failed to ensure that union requests for information received timely and accurate responses in accordance with Albuquerque District protocol." MPOO cited the 73 information requests that the APWU alleged were outstanding.4 Additionally, he noted that Petitioner falsely certified that the information requests were current; even after being notified of the APWU labor charge that there were outstanding requests. MPOO found that Petitioner did not properly manage the information request process and that she did not follow-up to ensure that the processes were in place and correct.
On September 20, 2010, the Agency upheld the proposed reduction in grade, effective September 24, 2010. The Deciding Official (DO) determined that it was Petitioner's responsibility to properly manage her employees so that they follow the Agency's policies. DO found that from October through December 2009, Petitioner did not ensure that the unions received their requested information. DO also took into consideration the fact that Petitioner certified that the information request log was updated and correct, when it was not.
Petitioner filed a timely appeal with the MSPB on September 28, 2010. A hearing was held on February 23-24, 2010, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on July 8, 2011, which became final on August 12, 2010. The AJ reversed the reduction in grade but found that Petitioner had not proven her affirmative defense of discrimination based on race and sex. The AJ reversed the reduction in grade because she found that the Agency violated Petitioner's right to procedural due process because DO took into consideration information obtained from an ex parte communication with Petitioner's first line supervisor and Petitioner had not been given an appropriate opportunity to respond.5
With respect to Petitioner's affirmative defense that she was discriminated against on the bases of her race and sex, the AJ found that the Agency did not decide to reduce her grade due to any discriminatory motive. Instead, the AJ found that the Agency made its decision due to the large number of outstanding information requests alleged in the APWU labor charge; the belief that Petitioner falsified her certification that there were no outstanding information requests and; information from the ex parte communication with Petitioner's supervisor. Petitioner alleged that a white, male comparator (C1), a Postmaster in Roswell, New Mexico, was treated differently. However, the AJ found that Petitioner did not show that C1 was alleged to have a similarly large number of outstanding information requests. Additionally, the AJ found that even though Petitioner claims that she did not know of the Agency's procedures for responding to union information requests, the Agency had cause to expect Petitioner to follow the proper procedures and had a legitimate reason for its actions.
Petitioner then filed the instant petition with the Commission. Petitioner alleges that the MSPB erred in finding that the Agency did not discriminate against her based on race and sex. Petitioner alleges that she was treated differently than Hispanic and Caucasian managers who either received no discipline or a letter of warning for similar conduct. Specifically, she alleges that C1 received a proposed letter of warning in lieu of 7-day time off suspension, but was never disciplined, and DO (Hispanic female) was issued a letter of warning in lieu of a time off suspension. Petitioner further alleges that DO continued to have labor charges filed against her but the Agency did not discipline her.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she 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 consideration 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). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on race and sex, we agree with the MSPB's finding that the Agency articulated a legitimate, nondiscriminatory reason for reducing her grade. While the AJ reversed the reduction in grade due to a violation of due process, at the time the decision was made, the AJ found that the Agency demoted Petitioner because the APWU charged her with 73 outstanding information requests; it believed that she submitted false certification reports and; it thought that she stated that she could not perform the duties of Postmaster.
Additionally, Petitioner did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus. The Agency denied considering Petitioner's race and sex in making their decisions and Petitioner did not show evidence that they did. Petitioner named two comparators, C1 and DO, whom she alleges were treated more favorably for similar conduct. However, we agree with the MSPB that Petitioner has not shown they had a similar number of outstanding information requests. In fact, the record shows that the comparators were each only charged with two outstanding information requests, while Petitioner was alleged by APWU to have had 73 outstanding requests.
While the MSPB did not discuss DO specifically as a comparator in its decision, we find that Petitioner has not shown that DO was similarly situated, but treated differently. Petitioner alleges that the Agency continues to treat DO more favorably because it has not disciplined her despite additional labor charges filed against her, dated January 19, 2010, July 1, 2010 and July 8, 2010. In his testimony, the District Manager (DM) confirmed that the Agency did not issue additional discipline to DO after the Letter of Warning, despite the additional labor charges. He stated that the unions will often dismiss or withdraw their labor charges and that many times; they have the information requested, but still file a charge.
While the record shows that DO was treated less harshly than Petitioner, it also shows that their situations differed with respect to the number of outstanding information requests. The Director of Labor Relations testified that DO never had a labor charge with more than 70 information requests. Additionally, she testified that Petitioner's case had the largest number of outstanding information requests and that she had never seen another case with a similar number of allegations. Accordingly, we find that Petitioner has not shown that the Agency's reasons for its actions were pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to reduce her grade was based on any protected bases.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/10/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Despite receiving a reduction in grade, Petitioner's pay was not reduced.
3 The record shows that the first two were sent via certified mail and signed for by others, and not Petitioner.
4 Petitioner denied that there were 73 outstanding information requests because many were duplicates and that the informal agreement between APWUS and S1 made those requests timely. However, the Agency maintained that it was not charging Petitioner with 73 outstanding requests but only noted that APWU made that allegation.
5 Petitioner's first line supervisor told DO that he believed that in a conversation with Petitioner, she told him that she could not perform the duties of Postmaster. Petitioner disputes this version of the conversation and stated that she said that she could not perform the duties of a Manager, Customer Services, after having been the Postmaster.
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0320160009