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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0120081808
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081808