0120080453
08-25-2009
Jean A. Montgomery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Jean A. Montgomery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120080453
Hearing No. 440200700176X
Agency No. 4J-606-0017-07
DECISION
On November 2, 2007, complainant filed an appeal from the agency's October
22, 2007 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
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
Whether the agency properly found that it did not discriminate against
complainant on the basis of age when it instructed complainant to leave
her assignment on October 5, 2007, and whether the agency properly found
that it did not retaliate against complainant when it denied her a yearly
salary increase.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Manager of Customer Services at the agency's Chicago, Illinois
Englewood Station. The record reveals that on October 6, 2006, the
agency temporarily reassigned complainant to a detail assignment in
Operations Programs Support.
On December 21, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of age (over 40 years old)
when the agency instructed her to leave her assignment on October 6, 2006.
Complainant further alleged that the agency acted in reprisal for prior
protected EEO activity when it denied her a yearly salary National
Performance Assessment (NPA) increase on January 25, 2007.
In a sworn investigative statement, the Acting Manager of Customer
Service Operations (S) for the Chicago District stated that complainant
was reassigned from her position because she failed to report curtailed1
and delayed mail. S stated that during a visit to the Englewood Postal
Station, she and the Manager of Post Office Operations noticed multiple
pieces of delayed and curtailed mail at the station that had not been
entered into the Customer Service Delivery Reporting System (CSDRS), in
violation of agency policy. S stated that complainant was also reassigned
because approximately 12 supervisors and other employees sought to bid
out of the Englewood Station because of complainant's management's style
and treatment of employees. S stated that she generally received calls
from employees claiming that complainant treated them disrespectfully and
had poor management skills. Additionally, S stated that customers made
a large number of complaints about the Englewood Station. S further
stated that complainant was reassigned partly because she failed to
provide information and documentation to the union and refused to
participate in the grievance process.
The Manager of Post Office Operations stated that complainant was
reassigned because she failed to submit accident reports in a timely
fashion; the Englewood station received an excessive number of customer
complaints; complainant failed to report delayed and curtailed mail;
employees complained about complainant's treatment of them; and,
complainant did not hear grievances at the lowest possible level or
provide documentation to support grievance cases.
Regarding the NPA salary increase, S stated that during the fiscal year
2006, only managers who received a numerical score of four or higher on
the Postal Service's Performance Evaluation System received a salary
increase. S stated that complainant only received a numerical score
of three. S stated that managers received ratings at the end of the
year based on their performance in the four core requirements, and the
ratings are converted to a numerical score. S stated that the four core
requirements were: the rate at which delivery confirmation of priority
mail and packages was scanned; parcel select service; return of all city
carriers to the station by 5:00 p.m.; and, oral communication skills.
She stated that compared to the items accepted and scanned, the amount of
packages actually delivered was unusually low at complainant's station,
and only 84.80% of parcel select pieces scanned fell within the service
standard, which was below the goal of 88%. S further stated that only
50.4% of carriers returned to the Englewood Station by 5:00 p.m. in
2006, which was far less than the goal of 88%. She also stated that
she relied on her own "dealings" with complainant and employee feedback
to conclude that complainant had not displayed the desired level of
communication skills.
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). Although complainant
initially requested a hearing, the AJ remanded complainant's complaint
to the agency for the issuance of a final decision on September 4,
2007.2 In a final decision dated October 22, 2007, the agency found
that complainant failed to prove that she was discriminated as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
discrimination or reprisal. Complainant contends that all Chicago
District stations have carriers on the street after 5:00 pm.; the
only managers who did not receive a salary increase in the district
were supervised by S; Englewood had the least number of customer
complaints in the district; employee complaints came from people who
had "personal connections" to S; the agency did not provide a list of
customer complaints; and, there were no reports of delayed mail in the
national audit report. Complainant further contends that an audit found
that Englewood passed its review with a score of 98%.
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").
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).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
In this case, we assume arguendo that complainant established a prima
facie case of reprisal and age discrimination. The Commission nonetheless
finds that the agency articulated legitimate, non-discriminatory
reasons for its actions, as detailed above. On appeal, complainant
contends that all Chicago District stations had carriers on the street
after 5:00 p.m. and provides a list of thirty managers whose stations
allegedly had carriers returning to stations after 5:00 p.m. However,
this list does not indicate the ages of these station managers, whether
or not they had engaged in prior EEO activity, or the identity of their
supervisors.3 Complainant further contends that the only managers that
did not receive a salary increase were supervised by S. However, there
is no evidence that the three other managers who were denied a salary
increase also engaged in EEO activity, which undermines complainant's
claim that S's actions were motivated by retaliatory animus. Thus,
we determine that complainant failed to provide any evidence that
similarly situated managers outside her protected classes were treated
more favorably than she was treated under similar circumstances.
According to complainant Englewood had the least number of customer
complaints in the district, and the agency failed to provide her with
a list of the customer complaints. However, the record contains
documentation showing that 851 customer complaints were lodged
against Englewood while complainant was Manager during the first
six months of fiscal year 2006, whereas only 554 complaints were
lodged against Englewood for the first six months of fiscal year 2007
after complainant was reassigned. Complainant further contends that
Englewood passed a national audit with a score of 98%. However, the
audit does not conclusively resolve the matters at issue here because
the audit was based on general station matters such as floor layout,
plant agreements, volume recording, and standard operating procedures.
In contrast, management largely cited complainant's management style
and interpersonal skills as bases for reassigning and denying her a
pay increase. Further, management based its actions on its personal
observations and employee reports about complainant's management style
and performance, which are not specifically addressed in the audit.
Complainant contends that the employees who complained about her had
personnel connections with S, but we find no persuasive evidence that
S and other responsible management officials harbored animus against
complainant because of her EEO activity or age. Consequently, we find
that the agency properly found no discrimination or reprisal.
CONCLUSION
After reviewing the record in its entirety, including consideration
of all statements submitted 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
_____08/25/09_____________
Date
1 Curtailed mail is mail that is not delivered on the same day that it
arrives at the postal station. Agency's Motion for Summary Judgment
and Memorandum in Support Thereof, p. 5.
2 We note that the record does not contain a copy of the AJ's remand
order, but complainant does not challenge the propriety of the AJ's
order on appeal.
3 We also note that having carriers return to the station by 5:00 p.m. was
only one of the four factors upon which managers were evaluated. As
indicated above, complainant was found to not have displayed the desired
level of communication skills. Furthermore, we note that the amount
of packages actually delivered at complainant's station was found to be
unusually low and the amount of parcel select pieces scanned was below
the district standard.
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0120080453
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080453