Wilda M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120171249 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171249 Hearing No. 510-2016-00284X Agency No. 1G-322-0032-15 DECISION On February 18, 2017, 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 January 18, 2017 final decision (FAD) 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution of Operations (SDO), EAS-17, at the Agency’s Jacksonville Network Distribution Center in Jacksonville, FL. Complainant had been promoted to SDO on November 16, 2013 and had been a SDO for approximately two years at the time of her complaint. Complainant was regularly assigned to Tour 2. 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. 0120171249 2 On September 3, 2015, her first-line supervisor (S1) informed her in a voicemail that she was to report to Tour 1 the next day, September 4, 2015. Complainant alleges that Tour 1 was generally considered undesirable because it was the overnight shift. Complainant suggested that a male co- worker (CW-1) was treated better than her because he was allowed to train as a supervisor on Tour 2. Further, after she alleged discrimination based on these events, Complainant alleges that she received a negative PFP and evaluation from S1 and her second-line supervisor (S2). During the investigation, S1 explained that she and Complainant were discussing Complainant’s poor performance and Complainant stated that the reason for her performance was because she felt she needed more training. Accordingly, S1 placed Complainant on Tour 1 for 30 days. S1 noted that Tour 1 was a good option because two of the SDOs on Tour 2 had already spent time training Complainant on Tour 2. At the end of Complainant’s assignment, S1 says that she received feedback that Complainant would benefit from an additional 30 days of training. S1 then continued Complainant’s assignment for thirty more days. S1 also explained that CW-1 was not a supervisor, but rather a mail handler assigned to Tour 2 who was an acting supervisor. CW-1 acted as a supervisor for four days in September 2015, but returned to his position as a mail handler. In Complainant’s performance evaluation, S1 said that Complainant “continues to be a challenge.” S1 listed several areas in which Complainant was deficient, including an inability to timely perform tasks, a failure to keep S1 informed of problems, does not follow instructions well, and does not have a good attitude. S1 assigned Complainant a numerical End-of-Year Rating of 4.17. The record includes contemporaneous performance evaluations for several other SDOs under S1’s supervision. All SDOs received the same End-of-Year Rating as Complainant. On some evaluations, S1 explained what each SDO could improve on. For instance, SDO-1 was cautioned to avoid “over extend[ing] your ability or your word to get the job done by overpromising” and to “[k]eep on tasks such as attendance.” And SDO-2 “need[ed] to work on your supervisor fundamentals,” needed to be more proactive, and needed to do a better job communicating with S1. On November 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (60) when: 1. On September 7, 2015, Complainant was forced to report to Tour 1 for 30 days training, and subsequently was forced to work an additional 30 days on Tour 1; and 2. On an unspecified date, Complainant was given a negative Pay for Performance (PFP) year-end-evaluation. 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, but subsequently withdrew her request on December 5, 2016. 0120171249 3 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that the record demonstrates she successfully established prima facie claims of discrimination. Complainant contends that the testimony provided by S1 and S2 “were conflicting and definitely corroborated by ample documentation that is in the investigative file.” Complainant also alleges, for the first time, that she was the only supervisor given a Performance Improvement Plan. In response, the Agency argues that Complainant does not dispute the legitimate, nondiscriminatory reasons articulated in the FAD. Specifically, Complainant did not dispute that S1 assigned her to training for the purpose of improving her performance. The Agency further argues that Complainant did not dispute that other SDOs not of her protected classes received unfavorable comments from S1, nor that all SDOs received the same numerical rating. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120171249 4 Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we proceed directly to the pretext analysis. U.S. Postal Serv. Bd. of Gov’rs v. Aikens, 460 U.S. 711, 713-14 (1983). Complainant may demonstrate pretext by showing by a preponderance of the evidence that the Agency’s reasons were motivated by discrimination. Id.; Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As to Claim (1), S1 explained that Complainant told her she needed additional training during a discussion about her poor performance. As a result, S1 assigned her to additional training. Complainant does not dispute S1’s assertions, but merely offers conclusory statements that assignment to Tour 1 constituted discrimination. Therefore, we cannot find that discrimination occurred with respect to Claim 1. Regarding Claim (2), S1 affirmed that Complainant had demonstrated poor performance across a variety of areas that were essential to being a supervisor. S1 noted that prior to the evaluation, she discussed with Complainant the numerous performance issues she was having and how management could assist her because her performance was not meeting expectations. Additionally, management points to specific evidence in the record that shows that several SDOs received unfavorable feedback and that all SDOs received the same point evaluation. Complainant offers nothing more than a generalized reference to the record and speculative and conclusory statements that her PFP was based on discrimination or reprisal. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). As Complainant withdrew her request for a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Upon review of the record, we find insufficient evidence to establish that the Agency’s actions were motivated by discriminatory or retaliatory animus. Lastly, we note that Complainant’s allegation that she was put on a Performance Improvement Plan does not appear anywhere in the investigative file, and was raised for the first time on appeal. As this matter was not raised previously, we will not consider it here. However, if Complainant wishes to pursue additional matters of alleged discrimination, she is advised to contact an Agency EEO Counselor. 0120171249 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 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. 0120171249 6 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation