01A53348
09-28-2006
Sharon Brashear, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sharon Brashear,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A53348
Hearing Nos. 340-A3-3258X & 340-2003-3480X
Agency Nos. 4E-890-0089-02 & 4E-890-0001-03
DECISION
JURISDICTION
On April 4, 2005, complainant filed an appeal from the agency's March
4, 2005 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 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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's King Station facility in
Las Vegas, Nevada. On or about April 17, 2002, complainant and the
Supervisor of Customer Services (SCS) had a conversation in which the
SCS told complainant that the Manager of Customer Services (MCS) wanted
complainant to take more training on mail registry. Complainant did not
take this well. According to the SCS, complainant asked him whether
the replacement clerk also was scheduled for retraining, and when she
found that the person was not, complainant purportedly stated, "That
bitch scheduled me for retraining." The SCS further stated that he
asked complainant to lower her voice and to identify who exactly she was
calling a bitch. Complainant allegedly pointed at the MCS and repeated,
"That bitch scheduled me for it." A short time later, both the SCS
and the MCS approached complainant about the matter, but complainant
denied that she had called MCS a bitch allegedly in a hostile manner.
SCS stated that he again asked complainant to lower her voice. Due to
complainant's behavior, management placed her on emergency suspension
on April 17, 2002.
As complainant believed discrimination was at the core of management's
action, complainant contacted an EEO Counselor on May 9, 2002. On June 3,
2002, complainant met with MCS and informed her that she was filing an EEO
complaint on the matter. On June 18, 2002, complainant received notice
that she was being suspended for seven days for unacceptable conduct
on April 17, 2002. Complainant then filed her formal EEO complaint on
September 20, 2002, alleging that she was discriminated against on the
basis of sex (female) and in reprisal for prior protected EEO activity
(arising under Title VII) when on June 19, 2002, she was placed on a
Seven Day Suspension.1
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 16, 2004 and
issued a decision on July 1, 2005.
FINAL AGENCY ACTION
The AJ concluded that complainant had failed to prove her claims.
Specifically, the AJ found that complainant had not established a prima
facie case of sex discrimination because the agency rebuffed complainant's
proffer of similarly situated comparators with the names of similarly
situated female comparators who had been treated in the same manner
under similar circumstances. As such, the AJ found that complainant
failed to raise an inference of sex discrimination. With regard to
her retaliation claim, the AJ found that complainant did raise a prima
facie case, but was unable to rebut the agency's proffered legitimate,
non-discriminatory reason with any evidence that the reason was a pretext
to discriminate against her. The agency, for its part, adopted the AJ's
finding in its final order.
CONTENTIONS ON APPEAL
In her statement on appeal, complainant argues that her sex was a factor
in the decision to suspend her and that the agency had no legitimate
reason for suspending her. In this regard, complainant maintains that
the AJ wrongly accepted the agency's statement of facts. She did not
directly insult MCS; she merely "referred to [MCS] as a 'bitch." Brief in
Support of Appeal at 1. Similarly, the agency mischaracterized the facts
for the AJ by stating that she had behaved loudly and aggressively on
April 17, 2002. According to complainant, she was very calm throughout
the incident. Similarly, complainant further argues that the AJ also
wrongly concluded that the suspension was a legitimate discipline under
the circumstances because her actions were not as egregious as the acts
of other employees who received similar suspensions. They, according to
complainant, had done worse things than her, so she should not receive
the same punishment. Lastly, complainant argues that the AJ erred in
condoning the agency's refusal to provide complainant information on
the disciplinary acts taken against complainant's named comparators.
In response to complainant's appeal, the agency presented an opposition
brief in which it argued that substantial evidence supports the AJ's
findings, that the AJ's credibility determinations should be respected,
and that complainant in no way was able to meet her burden of establishing
a prima facie case of sex discrimination or that the agency's proffered
reason for suspending her was merely a pretext to discriminate against
her. Therefore, maintains the agency, the Commission should affirm the
AJ's decision and the agency's final order adopting it. The agency points
out that complainant admitted having insulted MCS on April 17, 2002,
and, specifically with regard to her argument that the agency refused
to divulge the disciplinary acts taken against her named comparators,
the agency highlights the hearing testimony of MCS and SCS that discusses
in depth these actions.
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, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
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. See Furnco
Constr. 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.
See 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. See 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. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Cntr. v. Hicks, 509 U.S. 502,
519 (1993).
We note that complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. See Shapiro v. Soc. Sec. Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). 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. See Whitmire v. Dep't of the Air
Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We shall assume for purposes of discussion that along with having
established a prima facie reprisal claim, complainant also established
a prima facie sex discrimination claim. Turning now to the second
prong of the analysis, we discuss whether the agency's proffered reason
for suspending complainant was a legitimate and non-discriminatory act.
It is well established in our case law as well as in federal case law that
the agency's burden in a disparate treatment case is one of production
of evidence. The burden of proof to show the agency's actions were
discriminatory is always on complainant. In light of this assignment
of burdens, the agency's reason for suspending complainant must be
legally sufficient to justify a judgment in its favor. In other words,
the reason must be set forth with such clarity as to allow complainant
a full and fair opportunity to demonstrate pretext. See Burdine,
450 U.S. at 253. The agency meets its burden of production when it
provides, "a specific, clear, and individualized explanation for the
treatment accorded complainant." Miller v. United States Postal Serv.,
EEOC Appeal No. 01A55387 (June 9, 2006). The agency here explained that
it suspended complainant because of her unacceptable conduct on April 17,
2002. Complainant admittedly called MCS a "bitch," and witness testimony
reveals that she conducted herself in a hostile and inappropriate manner.
We find management's response to have been pursuant to agency policy.
Therefore, we find it a sufficient reason under the McDonnell Douglas
test.
Turning now to whether complainant proved by a preponderance of evidence
that the agency's reason is pretextual, we agree with the AJ that
she has not met this burden. Complainant must show that the agency's
real reason for the suspension was management's discriminatory animus
toward her. Pretext can be demonstrated by "showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the [Agency's] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence."
Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250
(Jan. 30, 2006) (citing Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th
Cir. 1997)). Absent proof of a demonstrably discriminatory motive,
we do not second-guess and agency's personnel decision. Complainant's
arguments only show that she disagrees with the suspension decision.
She believes that she did not deserve a suspension because, compared to
others who were suspended, her unruly conduct was not as bad. However,
as she does not point to any evidence that discrimination was the true
motivator behind the decision, we are not persuaded by her arguments.
Instead, we find the evidence is clear - she broke the rules and she
received an appropriate discipline in accordance with agency policy.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's findings are supported by substantial evidence in the record.
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's sex, or
her prior EEO activity. We therefore discern no basis to disturb the
AJ's decision. Accordingly, we AFFIRM the agency's final order.
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 28, 2006
__________________
Date
1 We note that complainant also alleged discrimination when on April
17, 2002, she was placed on Emergency Suspension, but she withdrew the
claim on November 16, 2004 during the administrative hearing on her case.
See Hearing Tr. at 26:13-20.
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01A53348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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