Felicia Y. Norman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionAug 25, 2009
0120081808 (E.E.O.C. Aug. 25, 2009)

0120081808

08-25-2009

Felicia Y. Norman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Felicia Y. Norman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 0120081808

Agency No. 4G-770-0358-05

DECISION

On March 6, 2008, complainant filed an appeal from the agency's February

11, 2008 final decision (FAD2) 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 FAD2.

ISSUE PRESENTED

Whether, after conducting a supplemental investigation, FAD2 correctly

found that complainant did not meet her burden of proving, by a

preponderance of the evidence, that she was terminated based on

management's discriminatory animus.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a part-time flexible (PTF) City Carrier at the De Moss Station

in Houston, Texas. On December 15, 2005, complainant filed an EEO

complaint alleging that she was discriminated against on the bases of race

(African-American), sex (female), and color (black) when, on September

29, 2005, she was issued a Letter of Termination for Unsatisfactory

Attendance and Work Performance.1

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). In accordance

with complainant's request, the agency issued a final decision (FAD1)

pursuant to 29 C.F.R. � 1614.110(b). In FAD1, which was issued on May

22, 2006, the agency found no discrimination in this case. On June 18,

2006, complainant filed an appeal from the FAD1, and by decision dated

February 23, 2007, the Commission vacated the agency's finding of no

discrimination and remanded the matter for further development of the

record (i.e., a supplemental investigation). See Norman v. United States

Postal Service, EEOC Appeal No. 0120063929 (February 23, 2007). In EEOC

Appeal No. 0120063929, the Commission noted that there were several

documents that ought to have been produced during the investigation.

Notably, we noted that the record did not contain an Affidavit from

complainant's supervisor (S1) (who was a signatory on one of complainant's

probationary evaluations) concerning complainant's performance during

the probationary period.2

After conducting a supplemental investigation, the agency issued FAD2,

from which complainant now appeals. FAD2 explained that complainant began

her employment with the Postal Service on July 9, 2005, and she was to

serve a 90-day probationary period. She received three "unsatisfactory"

ratings and three "satisfactory" ratings on her 30-day evaluation.

On her 60-day evaluation, she was rated "unsatisfactory" in one category

and "satisfactory" in the other five categories. She received four

"unsatisfactory" ratings and two "satisfactory" ratings on her 80-day

evaluation and, on September 29, 2005, her employment was terminated

during her probationary period.

FAD2 then found that complainant failed to establish a prima facie

case of discrimination. Next, FAD2 found that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

complainant was terminated because she was late on several occasions

and AWOL on one occasion; she could not complete her assignments in

the time required; she made mistakes including failing to deliver

accountable mail and curtailing mail without authorization; she had

customer complaints; and her performance worsened, rather than improved,

after her 60-day evaluation. FAD2 found that complainant did not prove,

by a preponderance of the evidence, that the agency's reasons were

pretexts for discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant insists that she has been subjected to

discrimination. She also asserts that the EEO Services Analyst

who drafted FAD2 has provided different reasons for her termination.

She also asserts that the agency took too long to issue FAD2. In reply,

the agency asserts that all four managers or supervisors who had something

to do with complainant's termination are the same race, color, and sex as

complainant. Additionally, three of the four other probationary employees

who successfully completed their probationary periods at the same time

as complainant was terminated are the same race as complainant and two

are also female. The agency indicates that during a reasonable period

before, during, and after complainant's termination, nine individuals

successfully completed their probationary periods as City Letter Carriers

at the same unit under the same supervision: two Black males, three Black

females, two White males, one Hispanic male, and one Hispanic female.

The agency asks the Commission to affirm the February 11, 2008 FAD.

ANALYSIS AND FINDINGS

Initially, we note that during the supplemental investigation, the

agency produced some, but not all, of the documentation which the

Commission requested in EEOC Appeal No. 0120063929. The stated reason

some of the forms were not produced was due to the high turnover rate

of supervisors during the relevant period. As to the missing affidavit

from S1 (the supervisor who signed one of complainant's evaluations),

during the supplemental investigation, the Manager, Customer Services

attested that S1 was off work at that time, that he had applied for

disability retirement, and that she did not expect him to return

to work. Thus, the record still lacks substantive testimony from S1

about complainant's performance. However, the record does contain

testimony from several other agency officials who had responsibility

for complainant's supervision. Overall, we find that this record now

contains adequate information for the Commission to make a determination

concerning whether discrimination most likely occurred in this 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").

The allocation of burdens and order of presentation of proof in a

Title VII case alleging disparate treatment discrimination is a three

step procedure: complainant has the initial burden of proving, by a

preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its challenged action; and complainant

must then prove, by a preponderance of the evidence, that the legitimate

reason offered by the employer was not its true reason, but was a pretext

for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

Assuming arguendo that complainant could establish a prima facie

case of discrimination, the agency has articulated legitimate,

nondiscriminatory reasons for its action. Specifically, complainant

was late on several occasions and AWOL on one occasion; was deficient

in terms of completing assignments in a timely manner; made errors

such as failing to deliver accountable mail/curtailing mail without

authorization; had customer complaints; and her performance worsened,

rather than improved, after her 60-day evaluation. Although one manager

disagreed that complainant's performance had worsened, this in itself

does not establish discrimination, particularly given that there was

another reason for the termination, namely, deficient attendance (to which

complainant has partially conceded occurred). Complainant contends that

others were treated more favorably during their probationary period.

For instance, she states that another employee who is Black and female

was treated more favorably because she had relatives at the agency.

She also states that a Black male's performance was unsatisfactory

but he was not terminated. She further points out that a supervisor

stated in her affidavit that complainant's performance had improved, and

she agrees that it had improved in that she mastered a very difficult

route that her white, male co-worker had problems with. Additionally,

she states that she was only late/absent on two occasions, and provides

explanations as to why the absences occurred.

Although the record evidence shows that other employees may have had

performance or timeliness deficiencies, it does not show that any

individual, outside her protected classes, had as many performance

deficiencies in addition to timeliness issues as complainant during

the probationary period, but were nevertheless treated more favorably.

We note that the record does show that a Black male employee was rated as

having unsatisfactory performance (although no attendance deficiencies),

and was not terminated. Management explained however, that they

attempted to terminate him but there was a problem which prevented

them from doing so, which involved discrepancies in his start date.

Complainant has not shown that this explanation is merely a pretext for

sex-based discrimination. We find that this record does not indicate,

by a preponderance of the evidence, that the termination was motivated

by discriminatory animus. In so finding, we note that we do not have

the benefit of an Administrative Judge's findings after a hearing, as

complainant chose a FAD instead, and therefore, we can only evaluate

the facts based on the weight of the evidence presented to us.

Finally, with respect to complainant's assertion that FAD1 did not

address her allegation that her privacy was violated when she was told

in front of a white, male co-worker (C1) that her performance was not

satisfactory, and that she should be more like C1. To the extent that

complainant is alleging that this incident constituted harassment, we

note that based on the standards set forth in Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) she was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on her membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The evidence in the record

is insufficient to support a finding that management's harassing actions

towards complainant were based on her race, color or sex. See EEOC Notice

No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 6. Additionally, this conduct would not be considered

severe or pervasive enough to be unlawful under Title VII.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM FAD2

(issued February 11, 2008).

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

______08/25/09_____

Date

1 She also alleged that her privacy was violated when she was given

negative feedback from a supervisor in front of a co-worker.

2 S1 had emailed the investigator and explained that due to medical

conditions, he was under heavy medication that made him unable to

remember complainant. He also added that he was out during the time

complainant was released.

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2

0120081808

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120081808