0120092832
11-25-2009
Gladys E. Paz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Gladys E. Paz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120092832
Agency No. 4A-006-0112-08
DECISION
On June 18, 2009, complainant filed an appeal from the agency's May 27, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a Human Resource Associate, EAS-11, at the agency's Caribbean Customer Service District Office facility in San Juan, Puerto Rico. Complainant filed an EEO complaint claiming that she was discriminated against in reprisal for prior protected EEO activity (arising under the ADEA) when:
1. On or about June 20, 2008, she was not selected for the position of District Complement Coordinator, EAS-21;
2. On or about December 31, 2008, she received notification that she was not selected for the Ad-Hoc District Complement Coordinator position; and
3. On or about December 18, 2008 she was placed in off-duty status.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). When complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that complainant failed to prove that she was subjected to discrimination as alleged.
The agency found that complainant failed to establish a prima facie case of retaliation and that even assuming she did, she proffered no persuasive evidence to rebut management's legitimate and nondiscriminatory explanations for their actions. The agency stated that complainant was not selected for either District Complement Coordinator position because she was not as well qualified as the selected candidates. For the EAS-21 position, the selectee was a much higher graded candidate seeking a one level promotion, who provided more thorough and focused answers in the interview than complainant did. For the ad hoc position, management sought someone who could assume the duties of the position without requiring the training complainant demonstrated she would have needed. Finally, complainant was told not to use email to challenge her supervisor. She did so, and was consequently placed off duty for failing to follow instructions and for insubordinate behavior.
CONTENTIONS ON APPEAL
The complainant offered no argument in support of her appeal, but the agency restated its explanations for the actions at issue and requested that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
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).
Assuming arguendo that complainant established a prima facie case of retaliation, we agree with the agency that it met its burden to present legitimate, non discriminatory reasons for its actions. We find that the agency's explanation was sufficiently clear and specific to afford complainant the opportunity to prove pretext.
Upon review of the record, we also agree with the agency that complainant fails to prove pretext. In reaching this conclusion, we find no objective or persuasive evidence from which a reasonable fact finder could conclude that management's explanations were unworthy of belief. Complainant alleges that she was qualified for the positions at issue because of her years of experience in all functional areas of Human Resources as well as her education. However, there is nothing in the record that persuades us that complainant's experience was such that she was truly competitive for promotion to a position ten grades above her current grade. Further, she fails to rebut management's contention that during the interview for the ad hoc position, she did not respond directly or confidently to questions and did not demonstrate an acceptable level of knowledge of "complement management." Finally, we find that complainant actually admits that she was using her computer to edit an email relating to her job tasks and does not deny that she had been instructed not to do so.
Complainant bears the burden of proof, by a preponderance of the evidence. Her response to management's explanations is non responsive. She simply repeats her belief that retaliatory animus motivated management. Her belief, without more, is insufficient to meet her burden of proof. We conclude that the agency is not liable for reprisal.
CONCLUSION
Based on a thorough review of the, we AFFIRM the agency's final decision.
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
November 25, 2009
__________________
Date
1 Pursuant to 29 C.F.R. � 1614.107(a)(1), the agency dismissed complainant's claim that she was not provided information regarding her workers' compensation claim. Complainant does not raise the propriety of this dismissal on appeal, and upon review the Commission exercises its discretion not to address it further.
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0120092832
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013