0120120934
05-03-2012
Robert Oaks, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Robert Oaks,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120120934
Hearing No. 471-2009-00009X
Agency No. 4J-481-0065-08
DECISION
On December 19, 2011, Complainant filed an appeal from the Agency's November 17, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Agency's Post Office in Stockbridge, Michigan since July of 2006.
On October 29, 2006, the Agency's Stockbridge facility was shut down due to severe flooding. On October 30, 2006, the facility was moved to a temporary facility. Complainant was responsible for starting a new postal office to ensure the continuation of mail services. It was Complainant who secured the vacant building as the temporary facility and opened it. Complainant had to start up the new facility from the ground up. On May 7, 2007, Complainant was assigned a detail at the Lansing facility and another Postmaster (PM, female) was assigned to the Stockbridge facility. Complainant received his performance appraisal for FY 2007 which was average. Complainant believed this was low based on the work he had to do to build the Stockbridge facility up from nothing.
Complainant contacted the EEO Counselor regarding his performance appraisal. During this time, Complainant indicated that his detail to the Lansing facility was coming to an end and Complainant had the option of returning to the Stockbridge facility, go out on sick leave, or request a new detail. Complainant noted that he could not return to Stockbridge based on doctor's orders and the Stockbridge facility's allegedly toxic environment following the flooding and the return to the original location. Complainant met with the Manger on May 5, 2008, following an EEO mediation which did not result in settlement. He claimed he wanted to meet with her to discuss the Stockbridge facility and inquire about a detail assignment. Complainant indicated that he wanted an assignment closer to his home. Complainant was given permission to go on detail to the Area 3 Lansing facility from May 10, 2008 through June 14, 2008. Then, starting June 14, 2008, Complainant was detailed as the Officer-In-Charge in Williamston.
On June 20, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him:
1. on the bases of sex (male), when on January 25, 2008, Complainant became aware that his Final Rating for FY-07 was unfavorable;
2. on the basis of reprisal for the instant complaint under Title VII of the Civil Rights Act of 1964 when, on May 5, 2008, his request for a temporary detail assignment closer to his home was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 14, 2011, and issued a decision on October 5, 2011.
As to the issue of the appraisal, the AJ determined that Complainant established a prima facie case of sex discrimination. The AJ held that Complainant was a member of a protected class, he was subjected to an adverse action, and provided evidence of a comparator outside of his protected class. The AJ noted that the PM served as the Postmaster at the Stockbridge facility and received a much higher rating. The AJ then found that the Agency met its burden of production by offering legitimate, nondiscriminatory reasons for its action. The Agency argued that Complainant's rating was lower than the PM because she performed better than Complainant at Stockbridge and another facility during FY2007. The Agency also noted that it considered mitigating factors for Complainant's appraisal but it did not make Complainant's evaluation reach the same level of the PM's rating. The AJ turned to Complainant to establish that the Agency's reasons were pretext for discrimination. The AJ determined that Complainant established pretext finding that Complainant's work at the Stockbridge facility was of exceptional contribution and that his performance should have been ranked higher in the face of complicated challenges. The AJ concluded that Complainant's low rating was unworthy of credence and held that the Agency subjected Complainant to sex-based discrimination.
The AJ then turned to the issue of the detail. The AJ noted that Complainant indicated that he requested the detail after the mediation had concluded. However, the Manager testified that any discussion of a detail closer to Complainant's home took place during the settlement discussions. As such, the AJ noted that statements or proposals made during settlement were inadmissible. While not doubting either witness's credibility, the AJ found that Complainant failed to present any corroborating evidence to support his version of the events. As such, the AJ concluded that Complainant failed to show that he asked for a detail closer to his home. Accordingly, the AJ found no discrimination as to this claim.
The AJ continued her analysis and found that Complainant was entitled to $3,000.00 in compensatory damages; a corrected performance appraisal; any bonus in pay Complainant would have received due to the higher performance appraisal; training for the Supervisors and management; and a posting regarding the finding of discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. This appeal filed by Complainant followed. No brief was filed on appeal and the reasons for the appeal are not apparent from the record.
ANALYSIS AND FINDINGS
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, at � VI.B. (November 9, 1999).
As to the AJ's finding of discrimination regarding the performance evaluation, we note that the Agency implemented the AJ's findings. Further, Complainant did not specifically challenge either the AJ's findings or the Agency's implementation of the AJ's findings. Additionally, Complainant did not specifically challenge the award of compensatory damages. As such, the Commission affirms without specifically addressing the Agency's implementation of the AJ's decision regarding the appraisal.
The Commission then turns to the AJ's finding of no discrimination regarding the detail assignment. 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. Social 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 (November 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he 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 (September 25, 2000). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination.
The AJ correctly stated that comments made during settlement discussions are inadmissible. Based on the evidence provided by Complainant and the Manager, the AJ determined that Complainant failed to show by independent evidence that he in fact requested a detail close to his home. Further, the Manager averred that if he had asked for such a detail, she would have provided it to him. Therefore, we find that Complainant has not established a prima facie case of unlawful retaliation for he has not established that he was subjected to an adverse action.
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 Order and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. The Agency shall provide Complainant with an "Exceptional Contributor" rating and provide other adjustments and mitigations to Complainant's performance appraisal.
2. The Agency shall determine the appropriate amount of back pay or bonus Complainant is entitled to based on the new performance appraisal, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The Agency shall pay Complainant $3,000.00 in compensatory damages.
4. The Agency is directed to conduct training for the Supervisor who was found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to sex discrimination.
5. The Agency shall consider taking disciplinary action against the Supervisor. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.
7. The agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final.
POSTING ORDER (G0610)
The Agency is ordered to post at its Detroit District facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
May 3, 2012
__________________
Date
2
0120120934
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120934