0120091956
09-09-2009
Emily S. Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Emily S. Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091956
Agency No. 4G-760-0166-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 24, 2009 final decision concerning her equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Postmaster, EAS-21, at the agency's Plainview Post Office in Plainview, Texas.
On December 20, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of sex (female) and in reprisal for prior protected activity when:
on October 27, 2006, she was involuntarily detailed from a Postmaster position to an untitled safety assignment.1
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its February 24, 2009 final decision, the agency found that complainant did not establish a prima facie case of sex and reprisal discrimination. The agency further found that assuming, for the sake of argument, complainant established a prima facie case of sex and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The former Manager, Post Office Operations (M1) stated that he was the deciding official to involuntarily detail complainant from her Postmaster position to an untitled safety assignment on October 27, 2006 after conducting a town hall meeting with the employees at the Plainview office.2 M1 stated that on October 25, 2006, he conducted a town hall meeting which was attended by approximately 23 employees and the union. M1 stated "what I heard that night about [complainant] and her lack of concern for her employees; her talking to all of them in a condescending tone; the distrust that she had built in this unit - made me sick. I realized while trying to get [complainant] to change through training and coaching in the way she treated people, I had let her bring down the attitude and even the dedication of these good employees. I definitely sensed a possible work place violence issue. The employees talked about their fear every day of some violence when she made some comment to employees." M1 stated that following the meeting "I made the decision as I drove home that night that I had to bring a new manager into this unit - at least for a while."
M1 stated that history showed that a "horrible" workplace environment had been in placed since complainant became the Postmaster. M1 stated "it got so bad that three labor climate surveys were performed by [Workplace Improvement Analyst]." M1 stated that while he never requested any of the surveys, many letters and petitions were sent to his superiors concerning complainant's lack of people skills "that the surveys were mandated." M1 stated that a review of the surveys showed that the employees had little respect for complainant and that major factors in the problems in the office were complainant's lack of communication skills and poor relationship with the employees.
M1 stated that at that time he told two managers that he had tried everything with complainant "including very expensive outside training on improving her people skills and nothing had worked. I asked them to attend so they could make some suggestions to what would work in changing [Complainant] so she could turn this labor climate issue around. I had tried coaching [Complainant] and had accomplished nothing."
M1 stated that there were not many managers and Postmasters who were willing to take the challenge of the Plainview office because they were familiar with the labor climate complainant had created. M1 stated that a named Postmaster had agreed to manage the Plainview office for a couple of weeks until he could get an Officer-in-Charge in there. M1 stated that he subsequently placed complainant in an unassigned safety detail on October 27, 2006. M1 stated that his area had struggled in the safety area during the prior year and he needed complainant's help because "she had knowledge of the safety area. I paid her current salary; I paid her mileage to and from work; and I let her set her own schedule. She did not lose a dime out of the detail and she gained a world of experience in this administrative job. She did a very good job in this detail." M1 stated that he instructed complainant to return to her Postmaster position at the Plainview office on October 1, 2007. Furthermore, M1 stated that complainant's sex and prior protected activity were not factors in his determination to involuntarily detail her from her Postmaster position to a safety assignment.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. We further find that complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation, and its finding of no discrimination is supported by the record.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 9, 2009
__________________
Date
1 On January 9, 2008, the agency dismissed the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the agency's dismissal and remanded the matter to the agency for further processing. Clark v. United States Postal Service, EEOC Appeal No. 0120081577 (May 20, 2008). Following the Commission's decision, the agency processed the remanded claim in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
2 The record reflects that on January 3, 2008, M1 retired from agency employment.
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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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