0120071042
06-19-2009
Janie M. Franklin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janie M. Franklin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071042
Agency No. 4H320006206
DECISION
On December 12, 2006, complainant filed an appeal from the agency's
November 6, 2006 final decision concerning her equal employment
opportunity (EEO) complaint. Complainant alleged 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant established that the agency discriminated against her
on the bases of race (African-American), sex (female), and in reprisal
for prior protected EEO activity under Title VII when she was informed
that she would not be utilized as an acting supervisor.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales and Service Distribution Associate at the agency's Fort Walton
Beach Post Office in Fort Walton, Florida. The agency rotated employees
to serve in an acting capacity in the absence of a supervisor. Complainant
served for several weeks prior to November 2004. Thereafter, the new
Postmaster assigned an individual not of complainant's race to serve as an
acting supervisor and did not permit complainant to continue to serve. On
April 21, 2006, complainant became aware that a Caucasian female employee
had been continuously utilized for more than 120 days (from December 18,
2004 to October 20, 2005), in the acting supervisory position.
The agency stated that it utilized the Caucasian employee because she
had a substantial background in Finance, which was a skill that the
Postmaster asserted the Post Office needed. In addition, complainant was
informed that she would not be used any longer because she had failed to
follow instructions and was believed to have had "run-ins" with another
supervisor who was assigned to help her. The record shows that the
Postmaster had appointed African-Americans, including complainant, and
those with prior EEO activity (both sexes) to serve as acting supervisors
in the past.
On May 23, 2006, complainant filed this EEO complaint alleging that she
was discriminated against on the bases of her race (African-American), sex
(female), and in reprisal for prior protected EEO activity under Title
VII when she was informed that she would not be utilized as an acting
supervisor. The record reflects that complainant had prior recent EEO
complaints and that agency officials were aware of complainant's prior
EEO activity.
At the conclusion of the investigation of the complaint at issue,
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 pursuant to 29 C.F.R. � 1614.110(b). In its final
decision, the agency concluded that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant alleges that the agency's decision erroneously failed
to address her retaliation claim and erroneously misidentified the
Postmaster's name. Complainant further reasserts that the action was
based on retaliatory animus against complainant because she challenged the
Postmaster as biased against African-American females and those who file
EEO actions. She points to the absence of African-American supervisors.
The agency contends, inter alia, that it acted reasonably in reliance
upon its perceptions of performance problems, and further stated that
complainant had been given opportunities to serve, but failed to follow
instructions.
ANALYSIS AND FINDINGS
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").
Initially, we note that while the decision erroneously referenced
the Postmaster's name, the correct Postmaster was included in the
investigation and considered in the determination on the merits.
We consider this to be a harmless error. Also, to the extent that
complainant is attempting to raise a hostile environment claim on appeal,
we note that this issue was not accepted by the agency. The record does
not show that complainant objected to the acceptance of the issues, and
complainant does not challenge on appeal the definition of the issues.
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). She
must generally establish a prima facie case by demonstrating that he
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).
The prima facie inquiry may be dispensed with in this case, however,
because the agency has articulated legitimate, non-discriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of
the evidence, that the agency's explanation is a pretext for reprisal.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
We find that complainant failed to present evidence that more likely
than not, the agency's articulated reasons for its actions for not
continuing her in the acting supervisor position - that she failed
to follow instructions and had "run ins" with another supervisor
assigned to help her - were a pretext for discrimination or reprisal.
In support of our finding, we note that complainant does not dispute
the performance-related reasons offered by the agency. Instead, she
acknowledges the actions, but questions why she was not disciplined. This
is not sufficient to show pretext.
CONCLUSION
Accordingly, it is the decision of the Commission, based on a thorough
review of the record and the contentions on appeal, to 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 tends 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
June 19, 2009
Date
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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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