01A61839
09-01-2006
Sandra C. Chiquito, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra C. Chiquito,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61839
Hearing No. 310-2005-00430X
Agency No. 56-000-0005-05
DECISION
On January 17, 2006, complainant filed an appeal from the agency's December
30, 2005 notice of final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. For the following reasons, the
Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
an Evaluator in the Human Capital Team at the agency's facility in Dallas,
Texas. Complainant contacted an EEO Counselor and filed a formal EEO
complaint on March 4, 2005, alleging that she was discriminated against on
the bases of race (Caucasian), national origin (Hispanic), religion
(Catholic), color (white), age (48), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
On November 17, 2004, complainant's Pay for Performance (PFP) appeal
was denied.
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). Complainant timely
requested a hearing and the AJ held a hearing on November 15, 2005 and
issued a decision on December 12, 2005. The agency subsequently issued a
notice of final action fully implementing the AJ's finding that complainant
failed to prove that she was subjected to discrimination as alleged.
In her decision, the AJ found that complainant established a prima facie
case of discrimination based on race, national origin, age, and color, but
that complainant had not established a prima facie case of either religious
or reprisal discrimination. Even so, the AJ found that complainant did not
show that the agency's reasons for giving her a rating of 390 out of 500
for the 16-month rating period from June 2003 through September 2004 (which
rating was upheld after complainant lodged an appeal) were a pretext to
mask discrimination. Rather, the AJ found that the agency official
responsible for denying her appeal was not aware of complainant's age or
her religion, and in any event, complainant did not show that the
unhappiness with complainant's conduct that complainant believed led the
rating or reviewing officials to give her the rating was connected to
complainant's race, national origin, color, age,
religion or in reprisal for prior protected activity.[1] The agency's
final decision fully implemented the AJ's findings and conclusions.
ANALYSIS AND FINDINGS
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.
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). He 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, since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (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
discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No.
05950351 (December 14, 1995).
The Commission notes that the hearing in this case was held by telephone.
No objection by either party was raised at the time of the hearing. The
Commission has held that testimony may not be taken by telephone in the
absence of exigent circumstances, unless at the joint request of the
parties and provided specified conditions have been met. See Louthen v.
United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).
However, since the facts of this case pre-date Louthen, we will assess the
propriety of conducting the hearing telephonically by considering the
totality of the circumstances. Here, it is unclear whether exigent
circumstances existed. On the other hand, it is clear that there were no
issues of witness credibility that might have been impacted by the taking
of testimony telephonically. The AJ made no credibility determination.
Under these circumstances, even if it is assumed that the AJ abused her
discretion in this case by taking testimony telephonically, the Commission
finds that her action constituted harmless error. See Garcia v. United
States Postal Serv., EEOC Appeal No. 01A45437 (July 19, 2006).
We find the AJ's determination that no discrimination occurred is supported
by substantial evidence in the record. Specifically, we note that
complainant did not show that the reasons given by the rating official were
either false or unworthy of belief. Rather, both the rating official and
the official to whom complainant's PFP rating was appealed provided
specific explanations for assigning the rating of "high contributor" to
complainant's performance, which, while not the highest rank possible, was,
nevertheless, indicative of complainant's quality of work and reflected a
positive evaluation in many areas of complainant's performance. We find
nothing in the record that shows complainant's PFP score was either based
on or reflected a diminished rating because of complainant's race, national
origin, religion, color, or age. We further concur with the AJ that
complainant did not establish any nexus between her prior protected
activity in 2001 and the denial of her rating appeal.
We therefore AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848, Washington, D.C.
20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 1, 2006
__________________
Date
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[1] Complainant claims in her complaint that agency officials retaliated
against her in part for whisleblower activities unrelated to any of the
statutes enforced by the Commission. Such activity, the Commission notes,
as did the AJ, cannot form the basis for reprisal in an EEO complaint.