0120121917
09-18-2012
Ruth A. Land, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Ruth A. Land,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120121917
Hearing No. 443-2011-00059X
Agency No. 4J606002910
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 16, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Supervisor of Customer Services, EAS-17 at the Agency's Stockyards Station in Chicago, Illinois. On July 19, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), age, and reprisal for prior protected EEO activity under Title VII when: Ongoing from October 13, 2009 to July 2010, she has been denied promotions.1
Specifically, Complainant alleged that Agency's Finance Manager (FM) constantly denied her opportunities for detail assignments and promotions and went outside of the Finance Department each time to fill such positions. Complainant further alleged that in 2009 and as recently as July 2010, she had requested a developmental training detail in the Budget and Financial Analyst position pursuant to her EEO complaint which the FM never responded. Complainant asserted that the employee that held the Budget and Financial Analyst position retired in June 2010, and yet she was still denied the opportunity. Complainant contended that a younger White male employee was previously placed in the Budget and Financial Analyst portion while she was not given an opportunity.
Complainant alleged that in October 2009, the FM withheld information about the Purchasing Specialist Job and abolished jobs as they became vacant, increasing the possibility of her out placement. Complainant asserted that she had applied for eighty-nine (89) jobs since the beginning of her career and had worked in many jobs throughout the Postal Service during her twenty-six (26) years of service. Complainant further asserted that she has the skills, knowledge and abilities along with education and experience which would qualify her for the jobs she has been applying for. Complainant noted that while she understood that jobs were "tight," she did not understand why positions were being filled with less qualified and less experienced individuals.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing, but on January 27, 2012, Complainant withdrew her request for a hearing. On February 3, 2012, the AJ remanded the complaint to the Agency for the issuance of a final decision. Thus, this Agency issued a final decision in this matter.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions. Specifically, the FM advised that she has not had a permanent official reporting relationship with Complainant since March 2010, and that Complainant had not reported to the Finance Division since approximately November 2009, when she was given a detailed assignment to the Cardiss Collins Plant Maintenance Department as Supervisor Maintenance Operation Support. The FM stated that she did not recall any conversations regarding Complainant's aspirations for upward mobility during the scope of the investigation covering the period of October 13, 2009 through July 2010. However, she acknowledged that she had conversations with Complainant involving job placement options because of the elimination of Complainants' permanent position. The FM maintained that she offered to speak on Complainant's behalf to the Human Resources Manager and the selecting official of Post Office Operations about the positions in which Complainant was interested in order to facilitate the exchange of Information for Complainant. The FM noted that upon notice of the restructuring of the Finance Department which eliminated targeted positions, Complainant asked for and was given a detail assignment to a Supervisor Maintenance Operations Support, EAS-17 position. The FM maintained that at the end of the maintenance detail assignment Complainant accepted another detail assignment to a Manager Business Mail Entry Unit, EAS-20 position.
The FM explained that on October 13, 2009, Headquarters announced their Finance restructuring plan to all field District Managers and their Finance and Human Resources Managers via a simultaneous national webcast. The FM maintained that this was the first time she was informed of the restructuring plan. She maintained that immediately following the webcast, the Human Resources Manager and she met with the EAS Finance staff to discuss this plan and the actions that would follow. She averred that Complainant requested and was granted a detail assignment to Maintenance Operations Support Supervisor for approximately three (3) months and then another detail to Manager Business Mail Entry Unit for the next three (3) to four (4) months.
When asked if she was aware of Complainant's interest in the Budget Financial Analysis detail, the FM stated that Complainant came to her office in April or May 2010 to inform her that she wanted to start her detail assignment to the Budget Financial Analysis position before the incumbent retired. The FM noted that she explained to Complainant that the position would remain vacant due to the need to reduce costs; therefore, there would be no detail assignment. She advised that Complainant also sent her an e-mail on July 30, 2010 with regard to the position. Of note, pursuant to a stipulation outlined in a Settlement Agreement for EEO Case Number 4J-606-0038-09, dated January 16, 2009, the FM and Complainant had agreed to discuss Complainant's development in that Budget and Financial Analyst position at a future date.
According to the FM, during the period from October 13, 2009 through July 2010, the Budget and Financial Analyst EAS-19 position was the only Finance vacancy with which she was involved. She explained that the position was posted at the time that Headquarters announced a suspension of all EAS hiring, promotions and noncompetitive placements. The FM advised that that memo dated July 28, 2010 stated that only selections finalized by July 30, 2010 would be processed and all other vacancies would be suspended until further notice. The FM stated that the fact that the posting of the vacancy for the Budget and Financial Analyst position was not going to be finalized by the July 30, 2010 deadline caused her concern because it meant that the position would end up vacant indefinitely. The FM asserted that during that same time she received a request for a voluntary downgrade to the position from the Operations Industrial Engineer. She contended that the Operations Industrial Engineer possessed the advanced technical as well as analytical skills and operational experience that were critical to the position. She maintained that besides all of his experience and advanced analytical skills, this engineer also had demonstrated a strong work ethic and outstanding interpersonal skills that were critical for success in the position. The FM advised that she accepted his request and selected him in accordance with the EL-312, Employment and Placement Handbook.
Section 743.11 of the EL-312, Employment and Placement Handbook, When to Consider Noncompetitive Applications, states in pertinent part, Competitive procedures are not required when (a) management initiates or an employee requests, reassignment to the same level; of (b) an employee voluntarily accepts a position at a lower level or request such a position in writing. (5). Employees may request noncompetitive consideration at any time, before a vacancy is posted, during the time it is posted, or after the posting has closed.
Section 743.12 of the EL-312, Employment and Placement Handbook, Competitive Selection, states, "If a position is not filled through noncompetitive procedures, then it is filled competitively through employee application in response to a vacancy announcement."
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 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). She must generally establish a prima facie case by demonstrating that she 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 conjectures and challenges the credibility of Agency witnesses in this matter. However, beyond her bare assertions, Complainant has not produced evidence to show that the Agency's explanations are a pretext for discrimination.
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 decision because the preponderance of the evidence of record 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
September 18, 2012
__________________
Date
1Initially, Complainant's complaint included a period of time ongoing from 2006 to October 12, 2009. However, on July 28, 2010, the portion of the complaint regarding ongoing from 2006 to October 12, 2009 was dismissed as untimely brought to the attention of an EEO Counselor in accordance with 29 C.F.R. � 1614.107(a)(2). In addition, the portion of the complaint regarding the period from March 2006 to January 16, 2009 (was raised in Case Number 4J-606-0038-09 and ceased when it was settled) was dismissed in accordance with EEOC Regulations for stating the same claim under 29 C.F.R. � 1614.107(a)(1). We affirm these dismissals.
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0120121917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121917