0120120026
11-30-2012
Jerry R. Patton, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Jerry R. Patton, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120026
Agency No. 4H-370-0073-11
DECISION
On September 22, 2011, Complainant filed an appeal from the Agency's September 7, 2011, final decision 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, on February 18, 2011, it changed his end-of-year (EOY) performance evaluation, which resulted in him receiving a 5 percent raise instead of a 5.75 percent raise.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor Relations Specialist, EAS-19, at the Agency's Tennessee Customer Service District in Nashville, Tennessee. Complainant's First Level Supervisor was the Acting Manager, Labor Relations (S1). Complainant's Second Level Supervisor was the Manager, Human Resources (S2).
For Fiscal Year (FY) 2010, the Agency evaluated Complainant's performance based on four core requirements (CR): (1) CR1 - grievances appealed to arbitration; (2) CR2 - grievances appealed to step 3 or B process; (3) CR3 - reduction in costs associated with cancelled/lost hearing dates; and (4) CR4 - oral communication. Each CR defined target outcomes at the non-contributor (1-3 rating), contributor (4-9 rating), high contributor (10-12 rating), and exceptional contributor (13-15 rating) performance levels.
On November 10, 2010, S1 issued Complainant his EOY performance evaluation and initially gave him the following ratings for CR1-CR4: 15, 9, 15, and 12. Later that month, S2 reviewed the ratings and lowered them to 13, 6, 13, and 4.
Subsequently, Complainant submitted a Review Ratings Recourse Request to change his ratings back to the initial ones he received. The form allowed Complainant to justify his challenge of the ratings and management to provide a narrative response in approving or disapproving his request. On February 14, 2011, S1 approved ratings of 14, 9, 15, and 10. On February 18, 2011, S2 disapproved Complainant's request to raise the ratings for CR1-CR3, but raised the CR4 rating to 6. Complainant's final ratings were 13, 6, 13, and 6.
Under the Agency's pay-for-performance program, Complainant qualified for a 5.75 percent raise based on S1's initial ratings and a 5 percent raise based on S2's final ratings.
In addition to changing Complainant's CR ratings, S2 changed the FY 2010 CR ratings for two other Labor Relations Specialists (C1 - prior EEO activity; C2 - no prior EEO activity).1 C1 and C2 each submitted a Review Ratings Recourse Request, which S2 also disapproved on February 18, 2011. Complainant, C1, and C2 received identical final ratings.
On April 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity (informal EEO complaint closed on October 27, 2010)2 when, on February 18, 2011, it changed his EOY performance evaluation, which resulted in him receiving a 5 percent pay raise instead of a 5.75 percent pay raise.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, 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 discriminated against him as alleged.
Initially, the decision found that Complainant failed to establish a prima facie case of reprisal discrimination. Next, the decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, Complainant's work performance warranted a lowered rating based on the target outcomes defined by each CR. Finally, the decision found that Complainant failed to establish pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that S2's actions were retaliatory. First, Complainant argued that S2 never provided any documentation to justify changing his ratings. Second, Complainant argued that S2 changed his ratings for personal gain. Specifically, Complainant asserted that S2 could have received personal satisfaction from decreasing his pay raise or from doing what she wanted to as the manager. Third, Complainant argued that S2's actions were evidence of her animus toward the Labor Relations Specialists. Specifically, Complainant asserted that S2 changed the ratings for him, C1, and C2, but did not change the ratings for the other employees she managed. In addition, Complainant found it suspicious that S2 gave him, C1, and C2 identical ratings if each employee was scored individually. Finally, Complainant asserted that it was impossible for him, C1, and C2 to be poor at oral communication (CR4) if they were successful at achieving other goals (CR1-CR3) that relied on their ability to communicate.
The Agency did not submit a brief or statement in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, � VI.A. (Nov. 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").
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for changing his ratings. When asked in her affidavit to explain why she changed Complainant's ratings, S2 referred to her February 18, 2011, written narrative response to Complainant's Review Ratings Recourse Request.
Regarding CR1, S2 had noted that a rating of 13 was appropriate because the number of grievances appealed to arbitration per 100 employees in the Tennessee Customer Service District was 0.96, not 0.02 as indicated by Complainant. ROI, at 134. Regarding CR2, S2 had noted that a rating of 6 was appropriate because the Tennessee Customer District did not reduce the number of grievances appealed to the Step 3 process but did reduce GATS payouts by 9.9 percent. Id. In addition, S2 had noted that any reduction in grievances appealed to the Step B process was irrelevant because Complainant was not involved in the Step B process. Id. Regarding CR3, S2 had noted that a rating of 13 was appropriate because the reduction in costs associated with cancelled/lost hearing dates was 56 percent, with the cost payout at $15,641.37 for FY 2009 and at $6,873.14 for FY 2010. Id. at 135. In addition, S2 had noted that the 69.44 percent reduction indicated by Complainant was the reduction in cancelled/lost hearing dates, not the cost associated with those dates. Id. Regarding CR4, S2 had noted that a rating of 6 was appropriate because Complainant needed improvement in the following areas: (a) communications with management and other officials; (b) become less argumentative; (c) avoid sarcasm; (d) guidance to the functions he supports is weak and more feedback/coaching with those functions is needed; and (e) at times he does not support, or gives the appearance of not supporting, organizational goals. Id. at 137.
Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's explanation for changing his ratings is a pretext for reprisal discrimination. Typically, pretext is proved through evidence that the agency treated the complainant differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8.II.E.2. (May 20, 1998). Pretext can also be shown if the agency subjected the complainant's work performance to heightened scrutiny after he engaged in protected activity. Id.
Here, there is no evidence that the Agency treated Complainant differently from similarly situated employees who did not engage in protected activity. Complainant identified several employees outside of Labor Relations whose ratings S2 did not change. We find, however, that those employees are not similarly situated to Complainant because they held different positions.3
In addition, there is no evidence that S2's explanation for changing Complainant's ratings is not believable. Regarding CR1-CR3, Complainant has not shown that the numbers cited in S2's February 18, 2011, narrative response were incorrect or that, based on those numbers, his ratings should be higher. Regarding CR4, Complainant has not shown that he did not need to improve the specific areas of communication cited in S2's February 18, 2011, narrative response. Although Complainant found it suspicious that he received the same ratings as C1 and C2, we find that S2's apparent decision to score the Labor Relations Specialists based on their collective performance is not indicative of reprisal discrimination.4
Although S2 changed Complainant's ratings shortly after he engaged in protected activity, we find that this by itself does not indicate that the change was based on his EEO activity. In so finding, we note that S2 also changed the ratings for C1 and C2 in the same time period, even though S2 averred that she was unaware of C1's prior EEO activity and the record reflects that C2 did not have any prior EEO activity. ROI, at 119, 159-172, and 233.
Further, to the extent that S2 singled out the Labor Relations Specialists by changing their ratings, we note that Title VII does not protect an employee from unfair treatment at the hands of an employer without evidence that the treatment was based on the employee's membership in a protected group. See Stevens, Jr. v. Dep't of the Air Force, EEOC Request No. 05920121 (Mar. 26, 1992).
Finally, we note that Complainant argued that S2 failed to provide documentary evidence to justify changing his ratings.5 We remind Complainant that, in an EEO complaint alleging employment discrimination, he at all times retains the burden of persuasion, and it is his obligation to show, by a preponderance of the evidence, that the Agency acted on the basis of a prohibited reason. Hicks, 509 U.S. at 519; U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). As explained above, we find that Complainant has failed to meet this burden.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
___11/30/12_______________
Date
1 S2 averred that she was not aware of C1's prior EEO activity.
2 S1 and S2 were involved in Complainant's prior EEO activity.
3 The comparators cited by Complainant had position titles such as Safety Specialist, HR Generalist, HR Specialist, Personnel Processing Specialist, Training Technician, Manager of Learning Development and Diversity, Manager of Health and HR Management, Health and Resource Management Specialist, and HR Secretary. ROI, at 204-228.
4 We note that S2's narrative responses to CR1-CR3 in the Review Ratings Recourse Requests for Complainant, C1, and C2 also cited the same numbers. ROI, at 134, 135, 160, 161, 167, and 168.
5 The record reflects that S2 submitted documentary evidence regarding CR1 and CR2 to the EEO Investigator. ROI, at 155-57.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120026