0320140034
02-13-2015
Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Petition No. 0320140034
MSPB No. SF0752110117B1
DECISION
On March 11, 2014, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
Petitioner worked as a Supervisor of Customer Services, EAS-17, at the Agency's San Bruno Post Office in San Bruno, California. Petitioner alleged that the Agency discriminated against her on the basis of her sex when she was demoted to the position of Part-Time Flexible Letter Carrier, effective November 6, 2010.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's actions. Specifically, the AJ found that Petitioner's duties included entering information on the Agency's Time and Attendance Collection System (TACS) to record hours, time, and attendance of her subordinate employees. In June 2010, the San Francisco District Manager (DM) received an anonymous letter alleging that Petitioner and the Postmaster "a) manipulated clock rings for years"; b) "changed color codes on curtailed mail"; c) gave unwarranted assistance to another employee in completing the delivery of the mail on a route, to two employees because they played on an office basketball team she supported; and d) showed favoritism to members of the basketball team by allocating them to choice assignments and days off. The DM directed the Manager of Post Office Operations (Manager1) to investigate the allegations.
On September 1, 2010, after an investigation was completed, Manager1 issued Petitioner a proposal to remove her from federal service for charge (1) failure to follow procedures (three specifications); charge (2) failure to report delayed mail; charge (3) failure to maintain color coding system; and charge (4) unacceptable conduct (four specifications).1 On November 2, 2010, the Senior Plant Manager (SPM) sustained all the charges listed but demoted Petitioner in lieu of removing her.
The AJ found in his May 4, 2011 decision that specifications 1 and 3 of charge (1) were sustained but specification 2 was not sustained. With regard to charges (2), (3), and (4), all specifications were sustained.2
With regard to Complainant's discrimination allegation, the AJ found that Petitioner failed to present any evidence that would give rise to an inference of discrimination. Petitioner argued that a male supervisor of the clerks (SC) was not demoted to a PTF craft position even though he had made some of the same improper clock rings. The AJ found that during Manager1's investigation, SC admitted that he had allowed a temporary supervisor to use his TACS ID to make clock rights. The AJ noted that because the temporary supervisor was making the clock rings, it was unclear whether SC actually made them. Although SC violated an Agency rule by permitting another employee to use his TACS ID, the AJ found that this did not support Petitioner's position that he should have also been demoted. The AJ noted that the record did not establish that SC was similarly situated to Petitioner because there is no evidence in the record that he made any clock rings that illegally denied employees overtime, failed to report delayed mail, failed to maintain color codes, or took employee documentation away from the Agency. Thus, the AJ found that Petitioner failed to demonstrate that she was treated more harshly than individuals outside of her protected class and did not present any evidence to show that the Agency's reasons for demoting her were a pretext for discrimination.
Petitioner appealed and the full Board issued a decision on April 27, 2012, remanding two of the four charges for further proceedings. Another hearing was conducted and the AJ issued a decision on December 13, 2012. The AJ found that charges 2 and 3 were not sustained and reiterated the findings in the initial decision regarding the remaining charges. The AJ also reiterated his finding that Petitioner failed to demonstrate she was discriminated against based on her sex as alleged. Petitioner again appealed the matter to the full Board. The full Board affirmed the AJ's determination in a decision on February 7, 2014. Petitioner filed a petition with the Commission to review the MSPB's determination with regard to her discrimination claim.
In her petition, Petitioner submits evidence that she believes was ignored by the Agency and the MSPB as well. Specifically, she argues that she submitted evidence that SC adjusted clock rings and that the record shows that SC provided reasons that did not "make any sense." Petitioner also argues that another male supervisor was ordered by the postmaster to change clock rings but he retired before he could be interviewed. Petitioner asserts that the postmaster was demoted for ordering her to change clock rings and believes that SC should have also been demoted or subjected to disciplinary action. Petitioner also argues that she only provided the medical documentation at issue in charge (4), specification 4, because it was requested of her.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
To prevail in a case such as this, Petitioner 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation for its action is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming arguendo that Petitioner established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Petitioner was found after an investigation to have failed to follow procedures, failed to report delayed mail; failed to maintain color coding system; and engaged in unacceptable conduct. Accordingly, Petitioner was demoted.
Because we, like the MSPB, find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Petitioner's burden to prove that the proffered reason was a pretext for discrimination. We find that Petitioner has failed to do so. Further, there is no persuasive evidence that the Agency was motivated by discriminatory animus. Additionally, we find that Petitioner did not establish that the AJ erred as a matter of law with regard to the matters at issue.3
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
_2/13/15_________________
Date
1 The record reveals that the three specifications of charge (1) involve instances where Petitioner allegedly altered the clock rings of subordinate employees. Specification 1 of charge (4) also involved 27 changes on TACS. Specification 2 of charge (4) involved Petitioner providing auxiliary assistance to carriers who played on the office basketball team. Specification 3 of charge (4) found that Petitioner asserted that the carriers who received auxiliary assistance were placed on light-duty, but there was no evidence to support her assertion. Specification 4 of charge (4) involved Petitioner engaging in unacceptable conduct when she removed a carrier's medical information from the San Bruno Office.
2 The AJ determined that "specification 3 of charge (1) and specification 1 of charge (4) [were] based on the same conduct and proof of one specification automatically constitutes proof of the other specification." The AJ also found that with regard to each specification, the Agency alleged that Petitioner made "27 changes on TACS when circumstances permitting such changes did not exists; I find that neither specification is based only on the allegation that [Petitioner] failed to properly document the changes." The AJ found that "the two specifications were merged under charge (1), the more specific charge of failure to follow procedures."
3 The Commission notes that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that there was an abuse of that discretion on the part of the AJ.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320140034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140034