0120060535
04-12-2007
Crystal L. Flack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01200605351
Agency No. 4G-780-0055-04
Hearing No. 360-2005-00127X
DECISION
On October 11, 2005, complainant filed an appeal from the agency's October
11, 2005 final decision concerning her 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record indicates that complainant filed formal EEO complaints on March
5, 2004 and September 3, 2004, alleging that she was discriminated against
on the bases of race (African-American), sex (female), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when: (1) on October 17, 2003, she was not selected for the Associate
Supervisor Program (ASP) after receiving a written score of ineligible;
and (2) on July 3, 2004, she was not selected for ASP training after
being interviewed by the agency official who was named in complainant's
initial complaint of discrimination.
The record reflects that complainant was employed by the agency as
a Small Parcel and Bundle Sorter Operator at the agency's El Paso,
Texas Processing and Distribution Center ("facility"). The record also
reflects that in the fall of 2003, complainant applied for the ASP,
and as part of the ASP application process, complainant was required
to take an examination and submit to an interview. In October of 2003,
complainant was notified that while she rated 'strong' in mathematics and
'excellent' in reasoning skills, she was rated as 'ineligible' in writing
skills and thus could not be considered for the ASP. Complainant then
filed a formal complaint of discrimination. Subsequently, complainant
took the ASP examination a second time and was deemed eligible to
proceed to an examination in June of 2004. Following the examination and
interview, complainant was informed that only the top two (2) candidates
(Black female and Black male) were selected to attend the ASP training.
Complainant was informed in July of 2004 that she scored third out
of three employees interviewed from the El Paso area and she was not
selected for ASP training. Complainant then filed a second discrimination
complaint, alleging that she was discriminated against when she was not
selected to attend the training. Complainant alleged that she had been
retaliated against by a member of the ASP interviewing panel, whom she
had alleged discrimination against in her first complaint.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f),
and the AJ scheduled a hearing to be held in El Paso, Texas, on August
11, 2005. The AJ was to be present telephonically from San Antonio,
Texas. The record indicates that about two (2) weeks before the hearing,
complainant contacted the Supervisory AJ of the San Antonio District
Office to complain about the AJ's pre-hearing rulings denying her
attempts to amend her complaint and compel discovery, in an attempt to
have her intervene. AJ's Decision at 4. The Supervisory AJ declined
to take any action, but two (2) days before the hearing, on August 9,
2005, complainant's representative again contacted the Supervisory AJ and
attempted to have the hearing cancelled on the grounds that the agency
failed to provide complainant with statistical information, despite
the fact that the AJ denied complainant's motions to amend and compel
discovery, and thus statistics were not relevant to complainant's case.
The Supervisory AJ again declined to take action.
On August 11, 2005, the hearing was scheduled to begin at 9:00 a.m. CST,
but the AJ was informed by complainant's counsel that the agency's
representative had not arrived. Although the agency's representative
arrived for the hearing 24 minutes late due to counsel's mistakenly
believing the hearing would begin at 9:00 a.m. MT,2 rather than 9:00
a.m. CST, complainant's counsel informed the AJ by telephone that he
and complainant would not participate in the hearing. The AJ informed
complainant and her counsel that if they refused to participate in the
hearing, they would be ordered to show cause as to why they should not be
sanctioned. Subsequently, by Order to Show Cause dated August 15, 2005,
complainant was ordered to show cause why she should not be sanctioned
for ex parte communications with the Supervisory AJ, and for failing to
participate in the hearing. Complainant was informed that her failure to
respond to the AJ's Order to Show Cause would result in the dismissal of
her complaint, and may result in the removal of her representative for any
complainant that he represented before the Commission. The AJ initially
noted that neither complainant nor her representative responded to the
Order to Show Cause by August 26, 2005; however, she later determined
that the responses of complainant and her representative were received
before they were due. Nevertheless, the AJ issued an Order on August 26,
2005 finding that dismissal of the hearing was an appropriate sanction.
The AJ found that: (1) the fact that the agency representative arrived
at 8:24 a.m. MT was the sole reason given for the departure from the
hearing of complainant and her representative; and (2) regarding ex
parte communication with the Supervisory AJ, if, in fact, complainant's
representative attempted to reach the AJ, as alleged, he did not leave
a message or request a return call. The AJ noted that the complaint
would be remanded to the agency as a "penalty sufficient to deter such
conduct in the future is particularly important in complainant's case, as
[c]omplainant currently has a case pending before another Administrative
Judge" and she must receive a "clear message" that similar conduct in the
future will be unacceptable. Regarding complainant's representative, the
AJ found that he was involved in the decision to walk out of the hearing
and to fail to impose sanctions against him "would be to effectively
condone such behavior in the future." As such, the AJ remanded the
complaint to the agency for the issuance of a final agency decision,
and her counsel was removed from representing complainant in any further
processing of her complaint.
The agency then issued a final decision (FAD) pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she
was subjected to discrimination as alleged. In the FAD, the agency
addressed complainant initial claim of discrimination and found that
she failed to establish a prima facie case of discrimination, as the
record indicated that the individuals who took the ASP examination were
identified by number only and the names, race and color of the applicants
were unknown to the examination evaluators. As there was no way for the
examination evaluators to know the race or sex of the applicants, the
FAD found that the agency did not engage in race or sex discrimination.
The FAD also found that assuming, arguendo, that complainant established
a prima facie case of discrimination, the agency articulated a legitimate,
nondiscriminatory reason for its actions in finding complainant ineligible
for the ASP. The Officer in Charge (OC; White male) stated that he was
a member of the ASP Review Committee when complainant took the written
examination in September of 2003. The OC stated that complainant failed
the written portion of the ASP examination and she thus was not able to
participate in the ASP until she was able to retake the examination and
pass all portions. In addition, the FAD found that complainant failed
to provide evidence that the agency actions in finding her ineligible
for the ASP were pretextual in nature.
Addressing complainant's allegation regarding the ASP training, the FAD
found that she failed to establish a prima facie case of discrimination.
The FAD found that while complainant is a member of a protected group and
was subjected to an adverse employment action when she was not selected
for ASP training in July of 2004, she failed to establish that there
were any similarly situated employees outside her protected groups who
were treated differently. In so finding, the FAD noted that complainant
failed to proffer evidence that African-American females failed to be
selected for ASP training at a higher rate than Caucasians and males.
In addition, the FAD found that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, that the agency followed
all procedures and policies for testing and selecting employees for ASP
training, and the selection of candidates for training was determined by
the needs of the agency and not by the members of the Review Committee.3
The FAD found that the fact that the agency selected two (2) candidates
for ASP training was not within the area of responsibility or control
of the Review Committee. The FAD then found that complainant failed to
proffer evidence which established that the agency's articulated reasons
for its actions were more likely than not a pretext for discrimination.
Finally, the FAD found that complainant failed to establish a prima
facie case of retaliation regarding her nonselection for ASP training.
In so finding, the FAD noted that complainant failed to establish a
causal relationship between her prior EEO activity and the agency's
adverse action. Specifically, the FAD noted that while complainant
alleged that the OC retaliated against her for her prior EEO activity,
the OC stated that the Interview Committee utilized a structured
interview process where each candidate was asked the same questions.
The OC stated that complainant's responses to several of the interview
questions demonstrated a minimal understanding of the subject matter,
and he was one of four (4) members of the Review Committee. The FAD
then found that there was no evidence that the members of the Review
Committee were aware that only two (2) applicants would be eventually
selected for the ASP training. FAD at 7.
On appeal, complainant alleged that the AJ erred in cancelling the
hearing and remanding the case to the agency for the issuance of a
final agency decision. Complainant alleged that she should not have
been sanctioned for her conduct at the hearing, and questioned the
reason the agency was not sanctioned for appearing late to the hearing.
In addition, complainant alleged that the evidence of record supported
her allegations of discrimination. The agency responded to complainant's
appeal, contending that the AJ's sanction of dismissing the hearing was
appropriate given complainant's pattern of willful disobedience to the
AJ throughout the case.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
As a preliminary matter, the Commission addresses the AJ's decision to
dismiss the hearing request and remand the case to the agency for a final
decision. The Commission's regulations afford broad authority for the
conduct of hearings by Administrative Judges. See 29 C.F.R. � 1614.109
et seq.; Rountree v. Department of Treasury, EEOC Appeal No. 07A00015
(July 13, 2001). When a complainant or agency fails to comply with an
AJ's Order, an AJ may take action against non-complying party pursuant
to 29 C.F.R. � 1614.109(f)(3), up to and including issuing a decision in
favor of the opposing party, or take such other actions as appropriate.
See 29 C.F.R. � 1614.109(f)(3) (iv) and (v). Here, the AJ's Order to
Show Cause of August 15, 2005, advised complainant that failure to abide
by or respond to the AJ's Order(s) could result in sanctions up to and
including dismissal of her complaint. The Order clearly indicated that
complainant and her representative were required to show cause why she
should not be sanctioned for engaging in ex parte communications with the
Supervisory AJ in the Commission's San Antonio District Office, and for
failing to participate in the telephonic hearing. After complainant and
her counsel responded to the AJ's Order, the AJ found that the sanction
of dismissing the hearing request and remanding the case to the agency
for a final decision was appropriate. We find that as complainant failed
to provide good cause for her ex parte pre-hearing communications with
the Supervisory AJ, and for failing to participate in the hearing, the
AJ's decision to remand the complaint to the agency for the issuance of
a decision on the merits was not an abuse of her discretion.
We now turn to the agency's decision on the merits. To prevail in a
disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993). 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. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas, supra). 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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 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. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
Regarding complainant's allegations of discrimination, we find that
assuming, arguendo, that she established a prima facie case of race or
sex discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to demonstrate were
pretextual in nature. With respect to allegation (1), we concur with the
FAD that the agency initially did not select complainant for the ASP as
she failed the written portion of the ASP examination and thus she was
not eligible to participate in the ASP until she retook the examination
and passed all of its portions. Regarding allegation (2), we concur with
the FAD's finding that complainant was not selected for ASP training,
as only two (2) ASP candidates were selected for training and complainant
scored third out of three candidates interviewed from the El Paso area.
Investigative Report, at Affidavit A; FAD at 5. Further, we note that
the Review Committee only established eligibility for the ASP training
and did not determine which applicants were selected for the training.
With respect to complainant's reprisal claim, we find that complainant
established a prima facie case of reprisal discrimination in that she
had previously filed an EEO complaint naming the OC as a responsible
management official and the OC was aware of complainant's EEO activity.
However, we find the agency has provided a legitimate, non-discriminatory
reason for its action. Namely, the agency argues that in determining
which ASP applicants were selected for training, the Review Committee
was made up of several members who evaluated the applicants interview
answers and gave each applicant a score. Of the three (3) ASP applicants
from the El Paso area, complainant received the lowest score from the
members of the Review Committee. The evidence establishes that the SO
was unaware that only two (2) applicants from the El Paso area would be
selected for ASP training. We find complainant's bare assertion that the
OC influenced the other members of the Review Committee to manipulate
her interview score so she would end up third on the list of qualified
ASP applicants to be unsupported by any evidence.
We therefore AFFIRM the agency's final decision finding no
discrimination.
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
______4/12/07_____________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The record indicates that El Paso is in the Mountain Time Zone, and
the language of the hearing order led the agency's counsel to believe
that the hearing would begin at 9:00 a.m. MT. The AJ found that this
was a case in which the agency's counsel had merely confused time zones,
rather than being intentionally late for the hearing.
3 The FAD noted that the members of the Interview Committee determined
which applicants for the ASP training were placed on the eligible list,
and the needs of the agency determined which employees placed on the
eligible list were selected for training. FAD at 5-6.
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01A60535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120060535