0120111956
02-22-2012
Mable Anthony, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mable Anthony,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120111956
Agency No. 4G-720-0064-10
DECISION
Complainant filed an appeal from the Agency’s February 11, 2011 Final
Decision 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 Postmaster at the Agency’s Mariana Post Office facility in
Mariana, Arkansas. On July 1, 2010, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of
race (African-American), age (64), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 the Age
Discrimination in Employment Act of 1967 when:
The Agency denied Complainant’s February 5, 2010 National Performance
Assessment (NPA) Ratings Recourse request for fiscal year 2009, and she
did not receive an increase in salary as a result.
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 EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a Final Decision pursuant
to 29 C.F.R. § 1614.110(b). Agency’s February 11, 2011 Final Agency
Decision (Ag Decision), Record on Appeal (ROA) at 43.
In its Decision, the Agency found that Complainant failed to establish
a prima facie case of race or age discrimination because Complainant
failed to identify any similarly situated employees, not in her protected
classes, who received a raise under the same or similar circumstances.
The Agency noted that the employees Complainant identified that
she alleged were given salary increases were not similarly situated
to Complainant. The Agency noted, for example, that employee E1,
identified in Complainant’s complaint, is younger than Complainant,
but also in Complainant’s protected racial group. E1, however, does
not supervise the same size post office and E1’s Total All Expenses,
was under her plan by 4.00%, while Complainant’s expenses were over
her plan. Likewise, E2, another employee identified by Complainant
as receiving preferential treatment, was also not similarly situated
to Complainant in that E2 also met her office’s Total All Expenses
and was under her plan. The Agency considered each of the employees to
whom Complainant compared herself and determined that none of them were
similarly situated to Complainant.
The Agency’s Decision considered the pay-for-performance raises awarded
to other Postmasters, both in and outside of Complainant’s protected
race and age groups, and observed that some received raises while others
did not, based upon their performance. The Agency noted that E3 was
in Complainant’s protected age group, did not receive a raise based
upon her performance, but the Agency found that E3 was an EAS-11, while
Complainant is an EAS 18. The Agency found that Complainant failed
to present a prima facie case of race or age discrimination.
With respect to Complainant’s reprisal claim, the Agency found
that Complainant failed to establish any connection between her prior
protected EEO activity and her failure to be awarded a raise for 2009
based on her performance. The Agency noted that the Agency official
(S4) who made the final determination not to grant Complainant’s
recourse request was unaware of Complainant’s prior EEO activity.
The Agency found that Complainant’s Total Office Expenses (TOE)
were over Complainant’s plan by 7.6%. Accordingly, the Agency found
that S4 articulated a legitimate, nondiscriminatory reason for denying
Complainant’s recourse request to increase her overall rating and
denying Complainant a pay-for-performance raise for fiscal year 2009.
The Agency found that complainant did not present evidence that the
Agency’s reasons were a pretext for discrimination. The decision
concluded that Complainant failed to prove that the Agency subjected
her to reprisal discrimination as alleged.
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. (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).
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. 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. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). 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. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the record supports the Agency’s Final
Decision that Complainant did not prove that she was subjected to
discrimination based on her race, age or in reprisal for her prior
EEO activity. Specifically, we note that the evidence shows that the
facility where Complainant serves as postmaster, Mariana, Arkansas,
exceeded its Total Office Expenses (TOE) by 7.6% for 2009. In her
appeal, Complainant argues that S4, the Agency official who ultimately
denied Complainant’s recourse request to change her performance rating,
submitted an affidavit after the investigation of Complainant’s
complaint was closed on October 6, 2010. S4 was the fourth level of
review for Complainant’s request to change her performance rating.
S4’s first affidavit is dated January 12, 2011. In that affidavit,
S4 states that he had no knowledge of Complainant or her rating.
S4 then submits an amended affidavit dated February 4, 2011, stating
that subsequent to providing the first affidavit, S4 reviewed the
recourse request for the ratings change at issue. S4 then stated in
the amended affidavit that he denied the recourse request because he
saw no reason to alter the original rating and because additionally
Complainant’s unit “missed TOE by 7.6% to plan.” We find this to
be a legitimate, non-discriminatory reason for not changing the rating
by S4 and for the original rating. We find that nothing in the record
indicates that S4 was aware of Complainant’s race, age, or prior EEO
activity. Complainant has not shown by a preponderance of the evidence
that others outside of her protected class were treated more favorably
with regard to ratings/recourse requests or that the Agency’s actions
in this complaint were motivated by discrimination.
CONCLUSION
We AFFIRM the Agency’s Final Decision finding no discrimination.
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
February 22, 2012
__________________
Date
2
0120111956
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120111956