0120091918
09-14-2009
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. 0120091918
Agency No. 4G-760-0103-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 23, 2009 final decision concerning an 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 at the agency's Plainview Post Office in Plainview, Texas.
On June 25, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the basis of sex (female) when:
on March 23, 2007, her Performance Evaluation System Rating request was denied.
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. However, complainant subsequently withdrew her request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its February 23, 2009 final decision, the agency found that complainant did not establish a prima facie case of sex discrimination. The agency further found assuming, arguendo, that complainant established a prima facie case of sex discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
The former Manager, Post Office Operations (M1)1 stated that the Postmasters have set goals through the National Performance Assessment program, and that part of the final score is the corporate rating which comes from national performance of the Post Office. M1 stated that the Plainview Post Office "gets the same scores as the rest of the offices in the Ft. Worth District on this." M1 stated that the unit is 50% which parts are the direct performance of Plainview. M1 stated that the main components are "T.O.E. and Retrain Revenue. Plainview scored zero in both. The Unit Summary was 2.85, which is the lowest, or at least one of the lowest, of my 122 offices." M1 further stated "there are also Core Requirements of Leadership and Communication, and Fiscal Management. I rated [complainant] as non-contributor in both, as she met the description under a 'non-contributor.'" M1 described the criteria as complainant having difficulty in guiding her staff in a positive manner; inconsistent in providing a satisfactory managerial example while motivating employees to work toward goals and objectives; and "occasionally inflexible when managing changing conditions in the organization. This perfectly describes the leadership and communications of [Complainant] for FY 2006."
M1 stated that complainant's management and human relations skills were "very poor" and made his final decision to involuntarily detail complainant from her Postmaster position to an untitled safety assignment after conducting a town hall meeting with the employees from the Plainview Post Office. Specifically, 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 that the employees voiced their concerns about complainant's leadership and "their exact words were that she was not trusted by employees; did not care about welfare of employees; employees had no respect for her as she had created a very hostile workforce; she constantly criticizes employees and their work."
M1 stated during the relevant time he sent complainant "to two outside training seminars concerning human relation skills since she has been Postmaster of Plainview. I have never had to do that before in my 25 years being over postmasters, but I felt it necessary to give her a chance to change her management style." M1 stated that the Ft. Worth District had performed three labor climate surveys of the Plainview Post Office. M1 stated that while he never requested any of the surveys, "they did get much attention due to the responses by the employees." M1 stated that in regard to her Core Requirements "on the two issues Leadership and Communication, and Fiscal Management - there is no way I could give her any other rating than 'non-contributor.' She was a failure in the leadership and communication with her employees. Her fiscal management of this office was a complete failure as shown by her Flash Report and NPA Report." Furthermore, M1 stated that complainant appealed his decision to the Ft. Worth District Manager (DM) and that DM "did not overturn my ratings."
DM stated that employees are evaluated on unit and corporate performance indicators as well as individual performance objectives (core requirements). DM further stated that unit and corporate performance indicators are aligned to improve customer service, generate revenue, manager costs and enhance a performance-based culture. DM stated that unit and corporate performance indicators and individual core requirements are established and communicated to all employees at the beginning of the evaluation period. DM stated that the recourse process "is available to an employee who believes that one or more of their core requirements ratings does not substantially reflect a fair assessment of his contribution of the work unit. The employee documents his concerns and rationale in the Performance Evaluation System (PES). The employee has 45 days from the date employees ratings are posted in PES to enter the recourse process." DM stated that if the employee's evaluator disapproves the recourse request in the PES, the employee may request a review by the next higher-level evaluator which is also done in the PES. DM stated that the next higher-level evaluator makes a final determination.
DM stated that in the instant case, she denied complainant's request "based on my review of her performance record, climate survey results, personal meetings with Workplace Improvement Analysts, personal meeting with [complainant], and discussion with [M1]."
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 14, 2009
__________________
Date
1 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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