0120110262
03-30-2011
Gregory W. Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Gregory W. Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110262
Hearing No. 420-2009-00050-X
Agency No. 1H326000408
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's September 23, 2010 final order concerning
his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisor of Distribution Operations, EAS-17, at the Agency's Pensacola
Processing and Distribution Center facility in Pensacola, Florida.
On July 7, 2008, Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex
(male), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when: on March 3, 2008, his National
Performance Assessment (NPA) evaluation was changed to a lower rating
and he was denied recourse for FY 2007.
The record reflects that Complainant had engaged in prior EEO activity
in EEOC Case No. 420-2007-00026X and Agency Case No.1 H-326-0009-06,
in which a formal complaint was filed on June 27, 2006. The case was
heard on July 11, 2007. The Responsible Management Official (RMO),
African-American Female, became aware of Complainant's prior EEO activity,
on May 14, 2008, approximately two months after the event giving rise
to Complainant's allegation of discrimination in this matter.
Executive and Administrative Service (EAS) employees like Complainant
are eligible for an annual pay for performance (PFP) salary increase
and/or lump sun payment based on a fiscal year performance evaluation.
These evaluations are conducted in accordance with established
performance appraisal instructions. PFP adjustments are made in
accordance with guidelines issued annually. PFP places emphasis on
the organization's success through objective, measurable performance
indicators. These performance indicators are measurable objectives
aligned at the corporate level, functional unit level, and individual
level. Under the PFP process, employees are evaluated on unit and
corporate performance indicators as well as individual performance
objectives (core requirements). The unit and corporate performance
indicators are established and measured in the NPA system. Unit and
corporate performance indicators are aligned to improve customer service,
generate revenue, manage costs and enhance a performance-based culture.
Individual core requirements are selected through an interactive
discussion between the employee and the evaluator at the beginning of the
evaluation period. The employee is required to document the individual
core requirements and forward them to the evaluator for approval.
On November 13, 2007, Complainant's supervisor, the Manager of
Distribution Operations (Caucasian, Male), rated Complainant on his core
objectives. On or about March 3, 2008, Complainant's NPA evaluation was
escalated to his second-level supervisor, the RMO. Complainant's NPA
evaluation was escalated to the RMO because his overall rating on his
core requirements was exceptional. Pursuant to regulations governing
the NPA, it was the RMO's responsibility to either concur or disagree
with Complainant's final NPA ratings.
The RMO lowered Complainant's final ratings because he did not meet
three of his four final core requirement goals. The RMO did not change
Complainant's rating of Exceptional Contributor (score of 14), on his
first core requirement which measured operational productivity. The RMO
lowered Complainant's score on Core Requirement #2 (Total Daily Through
puts) from High Contributor (11) to Contributor (6). Complainant had
agreed that the Total Daily Throughput goal for AFSM 100(ai) would be
13,500 pieces per hour (actual) (PPH) for Contributor status; 15,500
pieces per hour (actual) for High Contributor, and 16,132 (actual) pieces
per hour for Exceptional Contributor for the fiscal year-end rating.
Complainant was rated a Contributor based on his operation's measurement
of 14,099 pieces per hour. Complainant failed to reach the goals for
High Contributor and Exceptional Contributor. A contributor's pieces
per hour (PPH) goal was based on the performance of the entire Plant,
not just Complainant's tour (Tour 3). As one of the supervisors of the
flat sorting machine, Complainant had control over total performance of
the flat sorter operation, by coordinating with
each tour the necessary staffing to achieve the Plant's goal assigned
for the flat sorters for both tours. The RMO lowered Complainant's
year-end rating for Core Requirement #3, Penalty Overtime, from
Exceptional Contributor (14) to Non-Contributor. The RMO awarded the
Non-Contributor rating, because the Penalty Overtime was not reduced as
a Plant. According to the RMO, as a supervisor, Complainant has the
responsibility to control the use of penalty overtime by not keeping
people after tour or calling people in before tour and achieving the
necessary productivity. The RMO lowered Complainant's year-end ratings
for Core Requirement #4, Oral
Communications, from Exceptional Contributor (14) to Contributor (6).
As a Contributor, Complainant's role was to communicate with the employees
on the work room and other supervisors. The Pensacola Voice of the
Employee (VOE) result for FY-07, which is a measure of how supervisors
communicate, was 53.2 at year-end. This fell into the Non-Contributor
category. The Voice of the Employee (VOE) is conducted quarterly for
the supervisors to get some idea of how well they are communicating
with their employees. The Pensacola Plant's year-end score of 53.2%
was an indication that the supervisors were not communicating well with
the employees. On March 20, 2008, the RMO denied Complainant's request
for recourse (reconsideration) with respect to all three ratings that
he challenged. Complainant cited several comparators; however, none
had their evaluations escalated to the RMO.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On September 16, 2010, the AJ issued a summary decision finding no
discrimination. Concerning Complainant's claim of race and gender
discrimination, the AJ found that Complainant is not similarly situated
with any of his proffered comparators because their evaluations did not
escalate to the RMO. Further, the AJ determined that the evidence does
not establish a prima facie case of reprisal, because, according to the
RMO, she did not learn of Complainant's EEO activity, until after the
action at issue had been taken. Also, the RMO articulated legitimate
non-discriminatory reasons for lowering Complainant's NPA evaluation.
The RMO explained that she lowered Complainant's final ratings because
he did not meet three of his four final core requirement goals.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
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).
On appeal, Complainant mainly asserts that the AJ erred in his decision.
Specifically, Complainant states that an MDO, an African-American Male,
not involved in Complainant's rating, received a higher rating than he
did for Core Requirement #3 in his evaluation from the RMO, although
this MDO worked on the same tour as Complainant and at the same plant.
However, Complainant is not similarly situated to this cited comparator.
Complainant's position is subordinate to that of an MDO. Further,
the record shows that Complainant is not similarly situated with any of
his originally proffered comparators because their evaluations did not
escalate to the RMO. While Complainant strongly speculates that the above
cited MDO should have received a lower rating in Core Requirement #3,
the record is not persuasive in showing that Complainant is a victim
of unlawful discrimination. Even assuming Complainant established a
prima facie case on all bases, Complainant has not produced evidence to
show that the Agency's explanations are a pretext for discrimination or
identified material facts in dispute which could alter the adjudication
of his claims.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (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
March 30, 2011
__________________
Date
2
0120110262
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110262