0120162487
06-21-2018
Martina S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Martina S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120162487
Hearing Nos. 570-2013-00063X and 570-2014-00410X
Agency Nos. 6X-000-0038-10, 6X-000-0006-11, and 6X-000-0015-13
DECISION
On July 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 8, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the Administrative Judge's decision that Complainant did not establish that the Agency discriminated against her on the basis of sex and in reprisal for prior EEO activity when it did not select her for certain positions and allegedly subjected her to a hostile work environment.
BACKGROUND
At the time of events giving rise to this matter, Complainant worked as a Human Resources Business Data and Systems Analyst, EAS-25, at the Agency's Headquarters.
In formal complaints filed on October 6, 2008, June 15, 2010, and January 28, 2011, Complainant alleged that the Agency subjected her to discrimination and a hostile work environment based on sex and in reprisal for prior protected EEO activity. She alleged, among other things, that the Agency discriminatorily did not select her for the position of Manager, Field Operations in July 2008; changed her rating in the Agency's Corporate Succession Planning (CSP) program from "ready now" to "ready later" in March 2010; denied her equal pay; did not select her for a detail assignment as Acting Manager, Field Operations Requirements and Planning (FORP)/Acting Manager, National Performance Assessment (NPA); did not select her for an interview for a detail position as the NPA Manager; and did not select her for the position of Manager of Service and Field Operations Performance in October 2010. Complainant and the Agency settled the complaints in July 2011 and, per the settlement agreement, Complainant retired from the Agency. In October 2012, after the Office of Personnel Management rejected the agreement term related to Complainant's retirement, Complainant returned to work and her complaints were reinstated. In a formal complaint filed on March 22, 2013, and subsequently amended, Complainant alleged that the Agency discriminated against her on the bases of sex and reprisal when it downgraded and removed her from Operations Corporate Succession Planning in December 2012, her manager downgraded her CSP rating and her second-level manager refused to upgrade it in February 2013, and she was not selected to interview for or act in the position of Manager, Complement Staffing and Field Policy, in August 2013.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing March 1 - 3, 2016, and issued a decision in favor of the Agency on June 2, 2016.
The AJ found the following facts: the Agency uses the Corporate Succession Planning program to identify and develop potential leaders. A CSP Board comprised of Postal Career Executive Service (PCES) members evaluated applications to the program. The program ran on a two-year cycle, its terms varied from cycle to cycle, and the CSP pool and ratings "were effectively wiped clean" at the end of each cycle. A candidate who had not entered the PCES ranks by the end of a cycle could ask to be considered for the next CSP cycle. Although selecting officials were required to consider candidates from the CSP pool when filling executive positions, they had discretion to choose individuals from outside the pool. In addition, when choosing candidates from within the CSP pool, selecting officials could select individuals characterized as "ready now" or "ready later" and did not have to choose "ready now" candidates" over "ready later" candidates. The Agency used an informal, subjective process to fill executive positions; it did not use a formal ranking and selection process.
Complainant received exceptional performance evaluations and awards and commendations during her career at the Agency. In 2003, the Manager of Performance Support and Field Operations, Complainant's second-level supervisor (S1), nominated Complainant to the CSP. He did so in part because of Complainant's role in the development and implementation of the National Performance Assessment program. Complainant was considered to be an expert on the NPA, which supported the Agency's pay-for-performance program.
In 2005, S1 selected Complainant for a detail to the position of Manager of the Agency's Field Operations Requirements and Planning program. The FORP program was NPA's parent program. Complainant received an "exceptional" rating for the period that included the detail, and she worked closely with the female employee who succeeded her as FORP Manager (C1) after the detail ended. Complainant moved out of state in 2006 and worked on the NPA program as a "domiciled" employee who worked in a location different from where her program was physically located.
Complainant and other employees validated the NPA reports, which were essential to the Agency's pay-for-performance program, to ensure that there were no discrepancies between the reports and the raw data used in the system. They did this by manually checking the reports against the data. The validation process was time consuming. Complainant suggested that the Agency add staff to the program, but S1 wanted to find a way to automate the process. The AJ found that there was no dispute that Complainant and C1 made no progress toward the automation of the NPA validation process.
In late 2007, S1 selected a male CSP candidate (C2) for a detail to the FORP Manager position. Complainant, who accepted a position in the Agency's Human Resources Department, and two other NPA staff members left the FORP program. C2 and a new employee worked on automating the NPA validation process, and S1 chose C2 to fill the FORP Manager position permanently. S1 testified that he did so because C2 had the executive skills necessary to lead the development of the automated process and to perform the Manager's other duties. The Agency appointed C2 to the executive ranks and assigned him to the FORP Manager position on June 21, 2008. Complainant then filed her first EEO complaint.
The CSP review board gave Complainant a "ready later" rating during the 2010 CSP cycle. Complainant has asserted that C2 and another individual who was involved in her first EEO complaint inappropriately influenced the rating. S1, however, testified that he ensured that neither C2 nor the other employee sat on Complainant's CSP review boards. Although he could not ensure that those two individuals did not have informal conversations with review-board members, S1 noted that he was a member of the boards and that members did not discuss Complainant's EEO activity during the review board meetings.
In April 2010, the new Manager of Performance Support and Field Operations (S2) chose a female employee (C3) for a detail to the position of Acting FORP Manager/Acting NPA Manager. C3 stayed in the position following a reorganization, when it became the non-PCES, management pay-band position of NPA Systems Manager. Then, in August 2010, the Senior Vice President of Operations followed S2's recommendation and chose C2 for the position of Manager, Service and Field Operations Performance.
Complainant retired from the Agency, pursuant to a settlement agreement, effective July 31, 2011. She returned to work in October 2012. During the time that Complainant was away, the Agency instituted a new CSP cycle with new standards and rating scales. Complainant has asserted that, when she returned to work, the Agency downgraded and removed her from the CSP ratings. According to Complainant, the score that her new first-level supervisor (S3) gave her was proportionally lower than her prior rating. Complainant's second-level supervisor (S4) refused to upgrade the CSP rating. In December 2012, the Agency placed Complainant in the CSP pools for four positions and rated her "ready now" for each position.
The AJ found that, because of a coding error in the Agency's human capital system, Complainant's name appeared in the CSP pools but not in the pool extracts that Agency executives used to identify candidates for vacancies from February to October 2013. During that time, S2 chose a male for a detail to the position of Manager, Complement Staffing and Field Policy, and then a female to fill the position on a permanent basis.
In her decision, the AJ concluded that Complainant had not shown that any of the actions at issue occurred because of her sex or prior EEO activity. She found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue and that Complainant did not establish that the articulated reasons were a pretext for discrimination. For example, the AJ found that the Agency chose C2 for the Manager, Field Operations, position because of C2's management skills. S1 wanted a candidate whose executive leadership skills could move the NPA through automation. Although Complainant was a subject-matter expert on the NPA and had received superior performance ratings, S1 believed C2's management skills to be superior to Complainant's. The Agency selected C3 for a detail to the NPA Manager position, and kept her there when the Agency downgraded and transferred the position to the Finance Division, because of C3's strong communication and analytic skills. The Agency selected C2 for the Manager, Service and Field Operations Performance, position because C2, who had been in the PCES executive ranks for two years, had demonstrated strong performance as the Field Operations Manager. The Agency did not consider Complainant for the position of Manager, Complement Staffing and Field Policy, because a coding error kept her name off the CSP list of candidates. The Agency chose a male employee for the position because of his experience with operations functions.
The AJ stated that it appeared that Complainant had withdrawn her claim that the Agency subjected her to a hostile work environment based on reprisal. She also stated that the only evidence to support a nexus between Complainant's EEO activity and the hostile-work-environment claim were allegations that S3 called Complainant a "troublemaker" and said that Complainant had "no right" to file an EEO complaint. At the hearing, S3 denied making such statements. The AJ specifically noted the allegations and concluded, "Based on my assessment of the relevant witnesses' credibility and the written record in this case, I find that the preponderance of the evidence does not support a finding that the Agency subjected Complainant to a hostile work environment based on reprisal."
The AJ concluded that Complainant did not establish that the Agency subjected her to a hostile work environment based on sex. She found that any rating difference reflected in Complainant's March 2010 CSP ratings resulted from the Agency's use of a new rating system and that it had only a minimal impact. She also found that Complainant presented no evidence that C2 or another individual who was involved in Complainant's first EEO complaint participated in the CSP rating. Similarly, there was no evidence that the Agency discriminatorily withheld the CSP review board's exact comments from her. With respect to Complainant's allegation that the Agency denied her equal pay, the AJ concluded that Complainant's work as an NPA manager, which was an EAS staff position, was not comparable to the work of the Field Operations Manager, which was a PCES executive position. In that regard, the AJ noted that the Field Operations Manager was responsible for more functions than just the NPA. The AJ found no evidence that the Agency withheld "Lean Six Sigma" certification from Complainant because of her sex and concluded that the record did not support Complainant's contention that the Agency held women to higher standards and excluded them from executive positions. She determined that Complainant's "conclusory allegations regarding favorable treatment for men [lacked] the specificity necessary to support a claim for hostile work environment."
In addition, the AJ found that the Agency did not respond to Complainant's September and October 2010 requests for feedback because the CSP policy did allow supervisors to provide the CSP review board's comments directly to the CSP candidates. Finally, the AJ determined that Complainant did not establish that S3 and S4 discriminatorily downgraded her CSP rating in February 2013.
The Agency issued a final order fully implementing the AJ's determination that Complainant did not prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex and reprisal. She disputes many of the AJ's factual findings and contends, among other things, that the AJ erroneously relied on witness testimony. She also contends that the hearing transcript was inaccurate. She notes that the hearing transcript indicates that she stated that she did not follow the process for "Lean Six Sigma" certification. Complainant contends that she "recalls stating that she did follow the process given her by her manager."
In addition, Complainant asserts that she was better qualified for the FORP Manager position than C2 was and that the Agency's reasons for selecting C2 were a pretext for sex discrimination. She argues that her qualifications and those of another female CSP candidate were demonstrably superior to C2's qualifications. According to Complainant, she "demonstrated [that] she was a proven expert at managing the NPA program." She claims that "the failure of NPA a few years after [C2's] promotion to manage it in 2008" demonstrates that C2 was not qualified to manage the program.
Complainant contends that the Agency has a history of gender bias in PCES selections and executive promotions She further contends that the Agency subjected her to a hostile work environment and reprisal and that the Agency did not select her for details or promotions to executive positions in retaliation for her protected EEO activity. Complainant reiterates her allegation that S3 called her a "troublemaker" and said that she had "no right" to file an EEO complaint, and she argues that the comments constitute a per se violation of Title VII.
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. 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, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail on her disparate-treatment claims, 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 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a).
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation", EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998).
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on sex and reprisal. After a careful review of the record, we find that substantial evidence supports the AJ's findings that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not prove that the articulated reasons were a pretext for discrimination.
Complainant has not shown that the Agency discriminated against her on the basis of sex when it did not select her for the position of Manager, Field Operations. Although Complainant argues that her qualifications were demonstrably superior to those of C2, the evidence does not establish that her qualifications were so plainly superior that the Agency's reasons for selecting C2 were pretextual. Complainant contends that she was an expert at managing the NPA program, but she has not shown that S1's preference for C2's management skills was a pretext for discrimination. The preponderance of the evidence does not establish that the Agency did not chose Complainant for the position because of her sex. Similarly, the preponderance of the evidence does not establish that the Agency discriminated against Complainant on the basis of sex or reprisal when it did not select her for the other details and positions at issue.
Further, we find that Complainant has not established that the Agency took the other actions at issue in her complaints because of her race or protected EEO activity. For example, Complainant has not shown that considerations of race or reprisal affected her CSP ratings or caused managers to withhold the CSP review board's verbatim comments from her.
We note that Complainant has alleged that S3 engaged in per se reprisal by calling her a "troublemaker" and saying that she had "no right" to file an EEO complaint. S3 denied the allegations. The AJ, who had an opportunity to observe the witnesses and assess their credibility, rejected Complainant's allegations. Having reviewed the evidence of record, we see no reason to disturb the AJ's credibility findings.
We also note that, on appeal, Complainant asserts that the hearing transcript was inaccurate. During Complainant's testimony about Lean Six Sigma certification, the AJ asked, "Why did you have to go around that process?" According to the hearing transcript, Complainant's reply included the following statement: "I didn't follow the process, but I knew they didn't want me to have it." Even assuming that Complainant said "did" rather than "didn't," we do not find that he Agency discriminated against her with respect to the Lean Six Sigma certification or other matters at issue.
Complainant has not shown that the Agency's reasons for its actions were not credible or that discriminatory motivation more likely motivated the Agency's actions. We find, therefore, that Complainant has not established that the Agency subjected her disparate treatment based on race or reprisal.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her sex or protected EEO activity. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to a hostile work environment based on sex or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
___6/21/18_______________
Date
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.
2 All four complaints also alleged discrimination based on race and age. Complainant subsequently withdrew those bases.
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