Joelle L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120142981 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joelle L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142981 Hearing No. 471-2012-00104X Agency No. 4J-481-0105-11 DECISION On August 21, 2014, Complainant filed an appeal from the Agency’s August 2, 2014 final order 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Mail Processing Clerk at the Agency’s Main Post Office in Royal Oak, Michigan. On July 10, 2011, she filed an EEO complaint in which she alleged that the Acting Manager (AM) discriminated against her on the bases of race (African-American), sex (female), and reprisal (prior EEO activity) by not including the Postmaster Secretary position (PSP) among the vacant positions available for bidding. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s timely request, the AJ held a hearing on August 5 and 6, 2013, and issued a decision on July 21, 2014. The Agency subsequently issued a final order adopting the AJ’s 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142981 2 finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On April 22, 2011, Complainant and several other Clerks received written notification that due to the closure of the Southeast Michigan District office, their bid assignments would be abolished effective May 20, 2011. Investigative Report (IR) 313, 322, 327. They were given temporary assignments by the AM effective May 21, 2011, and by July, they had been assigned to the Metroplex facility in Pontiac, Michigan. IR 314, 322-26, 330-35; Hearing Transcript (HT) 45. The AM averred that a Labor Relations Representative contacted her to find out whether she had any vacancies for the three employees whose jobs were being abolished, and that she responded that she could take them all, including Complainant. IR 199. Both the AM and the Officer-in-Charge (OIC) testified that there were four available vacancies, which made it unnecessary to post positions that were encumbered, and that the PSP was one of those encumbered positions. The AM acknowledged that when she met with the three clerks on June 2, 2011, she told them that she had been mistaken when she previously informed them that all the positions would be posted for bidding. IR 199-201, 219-22, 224; HT 186-88. The AM’s assessment was confirmed by the Customer Services Supervisor. IR 260-61. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving terms and conditions of employment like bid postings unless there is evidence of a discriminatory motivation on the part of the officials responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that the AM was motivated by unlawful considerations of her race, sex, or previous EEO activity when she decided not to put the Postmaster Secretary position up for bidding. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In a circumstantial-evidence case such as this, Complainant can prove the existence of an unlawful motivation by showing that the AM’s articulated reason for not putting the Postmaster Secretary position up for bidding is pretextual, i.e., not the real reason but rather a cover for 0120142981 3 discrimination on the aforementioned bases. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can take the form of discriminatory statements or past personal treatment attributable to the AM, comparative or statistical data showing differences in treatment across racial or gender lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). In finding in the Agency’s favor, the AJ had made a number of critical factual findings, chief among them was the fact that the AM had made a mistake in telling the clerks that all jobs would be up for bidding, and that she corrected herself when she met with them on June 2, 2011. Consequently, the AJ noted that because the PSP was encumbered, it would not be posted for bidding. The AJ determined that the AM was a highly credible witness and accorded her affidavit and hearing testimony great weight. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (August 5, 2015). When asked why she believed that her race and sex were motivating factors in the decision not to post the PSP for bidding, Complainant responded that the AM wanted to keep the white male incumbent in the PSP regardless of the fact that she had more seniority than the incumbent. IR 152-53, 155-56; HT 81. When asked the same question regarding her previous EEO complaints, she responded that the AM repeatedly asked her in an abrupt tone of voice whether she was privy to everyone’s job. IR 154. In support of her assertions, Complainant offered various sworn and unsworn statements from other Clerks, including a handwritten two- page statement from one of the two Clerks whose positions were abolished with hers. While this Clerk confirmed that the AM had corrected her previous mistake regarding which positions would be up for bid, she did not make any statements regarding the AM’s motivation. IR 126-27, 316-17. The other Clerk averred that he was not sure why Complainant was raising race or sex discrimination as an issue because all three of them were from different racial and ethnic backgrounds. IR 298. Additionally, Complainant averred that another Clerk told her that he heard AM say that she would do everything in her power to keep the incumbent in the PSP. IR 152. The AM denied making this statement, and the Clerk upon whose hearsay testimony Complainant relied denied that he had heard it. HT 220; Supplemental Investigative Affidavit, pp. 3-4.2 2This individual’s affidavit was prepared and submitted after the investigative report had been issued, and had been made a part of the hearing record. 0120142981 4 The laws the Commission enforces cannot protect employees from the consequences of personnel decisions with which they disagree unless those decisions are rooted in a statutorily proscribed motivation. And on this crucial issue, Complainant did not provide evidence sufficient to demonstrate pretext. While she did submit the hearing testimony of a number of witnesses, the AJ found that these witnesses lacked personal knowledge of the circumstances surrounding the decision not to put the PSP up for bidding, lacked credibility based upon the AJ’s personal observations of their demeanor, or both. Overall, Complainant has not presented any sworn statements from other witnesses or documents sufficient to contradict the explanation provided by the AM for not putting the PSP up for bidding, or otherwise call the AM’s veracity into question. We therefore find no basis upon which to disturb the AJ’s credibility determination regarding the hearing testimony of the AM or the other witnesses. Ultimately, we agree with the AJ that Complainant has not sustained her burden of proof with respect to her claim of employment discrimination in connection with the decision not to put the PSP up for a bid. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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. 0120142981 5 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 29, 2016 Date Copy with citationCopy as parenthetical citation