Cleo S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 8, 20160120143070 (E.E.O.C. Jan. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120143070 Hearing No. 531-2014-00105X Agency No. 1K-211-0018-13 DECISION Complainant filed an appeal from the Agency’s August 26, 2014 Final Decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s Final Decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations at the Agency’s Baltimore Processing and Distribution Center facility in Baltimore, Maryland. On April 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal2 for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant alleged a violation of the Genetic Information Nondisclosure Act (GINA) in his complaint, but subsequently withdrew GINA as a basis of his complaint during the investigation. 0120143070 2 On December 1, 2012, Complainant received an unfavorable Pay for Performance (PFP) evaluation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. By order dated July 22, 2014, the AJ dismissed Complainant’s complaint from the hearing process for failure to proceed when Complainant failed to submit a prehearing statement and witness list as ordered by the AJ. Thereafter, the Agency issued a Final Decision pursuant to 29 C.F.R. § 1614.110(b). In its Final Decision, the Agency found that Complainant claimed when he is under the supervision of S1, S1 described Complainant’s performance as “subpar” and noted that Complainant does not get along with other employees. The Agency found that Complainant claimed when he is supervised by other management officials, this does not happen. The Agency considered S1’s justification for describing Complainant’s performance as “subpar” when he noticed that Complainant had been observed performing craft work for other employees. Additionally, Complainant’s performance evaluation noted that Complainant frequently does not unload inbound mail receipts in a timely manner and does not monitor outbound trips to ensure all available mail was captured. The Agency’s Decision also noted that Complainant has allowed outbound trips to depart late without explanation. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency, nevertheless, assumed for the sake of argument that Complainant had so established a prima facie case. Even so, the Agency found that Complainant did not prove that more likely than not, S1 was motivated by discrimination when he rated Complainant’s PFP as less than satisfactory. The Agency noted that Complainant was not the only supervisor to receive a less than satisfactory rating. S1 explained that Complainant had recently transferred to Tour 1 from Tour 3, although S1 remained Complainant’s rating official for PFP. S1 explained that other Tour 3 managers had conflicts with Complainant and so, Complainant was reassigned by one Tour 3 manager to Tour 1. Additionally, the Agency found that S1 stated he consulted with the Tour 3 managers regarding Complainant’s performance and that S1 did not intend to harass Complainant when S1 failed to discuss his rating in a timely manner with Complainant. S1 stated that he was not aware that the Tour 1 manager had not discussed the fiscal year 2012 rating with Complainant as S1 expected. The Agency found that S1 supplied legitimate, nondiscriminatory reasons for evaluating Complainant’s PFP as he did. The Agency considered whether Complainant had presented evidence of pretext with respect to S1’s unsatisfactory rating. Complainant stated that as soon as Complainant’s prior EEO case was concluded, that is when S1’s untimely evaluation of Complainant’s PFP was issued. The Agency found, however, that S1 explained that he failed to meet the deadline for issuing Complainant’s PFP evaluation because he believed that other managers would be discussing the rating with Complainant. The Agency found that Complainant presented no evidence to show 0120143070 3 that the Agency’s reasons for its action were false or unworthy of belief. Accordingly, the Agency found that Complainant failed to establish that the Agency’s explanations were a pretext to mask reprisal discrimination. The Final Decision concluded that Complainant failed to prove that the Agency subjected him to reprisal discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In the instant case, we find that the record supports the Agency’s Final Decision. We shall assume for the sake of argument that Complainant established a prima facie case of reprisal discrimination. We concur with the Agency, that Complainant presented no evidence that the Agency’s reasons for evaluating his performance as S1 did, was motivated by discrimination. 0120143070 4 On the contrary, we find that Complainant concedes he performed craft work as stated in his evaluation. We further find that Complainant presented no evidence to rebut the Agency’s claim that Complainant refused to communicate by radio, which Complainant had been directed to do, and that Complainant had approved leave for employees who reported to other supervisors. We find the record supports the Agency’s conclusion that S1 based his rating of Complainant’s PFP upon deficiencies in Complainant’s performance that Complainant failed to show were false and a pretext to mask discrimination. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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). 0120143070 5 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 (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 Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations January 8, 2016 Date Copy with citationCopy as parenthetical citation