0120170073
06-12-2018
Alexander A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alexander A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170073
Hearing No. 420-2014-00002X
Agency No. 4G350006913
DECISION
On September 24, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 26, 2016, 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 Budget Financial Analyst, EAS-19, at an unspecified Agency facility in Birmingham, Alabama.
On June 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), national origin (Hispanic/Panamanian American), sex (male), and color (dark-skinned) when:
1. On February 19, 2013, Complainant was denied a higher-level temporary assignment to the position of Manager, Finance Programs Compliance.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 19, 2016, and issued a decision on August 19, 2016, finding no discrimination. Specifically, the AJ found that the former District Finance Manager (DFM1: Black, Panamanian American, male, black) had been placed on administrative leave leaving his position vacant, and that the District Manager (DM: Caucasian, American, male, white) placed the Manager of Financial Programs and Compliance (M1: Caucasian, female, American, white) into DFM1's position on a temporary, acting, basis. M1 then placed the Supervisor, Statistical Programs (SSP: Caucasian, female, American, white) in her former Manager of Financial Programs and Compliance position on an acting basis, on the grounds that SSP had acted in that capacity on occasion in the past, while Complainant had not.
The AJ found that the Agency therefore articulated legitimate, nondiscriminatory reasons for its action, and further found that Complainant failed to establish that such a reason was a pretext. The AJ next found that the testimony of Agency officials was credible and that Complainant failed to show his qualifications were so superior to those of SSP as to establish pretext. The AJ further found that, while there was testimony that M1 had made derogatory and possibly race-based comments about Complainant and DFM1, and displayed a harsher demeanor towards Black males, Complainant failed to establish a nexus between such alleged behavior and his nonselection.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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. (Aug. 5, 2015).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action. The record shows that after DFM1 was placed on administrative leave, leaving his position vacant, DM placed M1 into DFM1's former position, whereupon M1 placed SSP into her former position. During the investigation M1 averred that DFM1's departure and M1's temporary assignment into that position was a very stressful time in the office and she selected SSP to take over her duties because "she reports directly to me and we work closely on a daily basis due to our job requirements. She has filled in for me on several occasions and already has the required access and knowledge to perform the duties." M1 further averred that:
I have worked in Finance for 18 years (15 + years as an EAS). During this time I have always been taught to mentor someone to fill in for me when I am on leave, vacation or in emergency situations. Over the years I have mentored several employees. Since becoming the MFPC I have mentored [SSP]. She reports directly to me and we work closely on a daily basis. She has filled in for me on several occasions when I was filling in as the Finance Manager or when I was on vacation. The events of [that time] were very stressful for the Finance department. I was needed to fill in as the DFM immediately and I needed someone to fill in for me (the MFPC position) immediately. [SSP] already has the necessary access, knowledge and experience to perform the duties of the MFPC and she has employees that can back-fill for her position.
At the Hearing, M1 testified that "if I'm not going to be there, [SSP] does it because she . . . the core duties have to be performed each day. So it's an automatic reflex, if I'm not - if I'm doing something else on a day, then she would do those reports and the core duties of that job."
The Agency having articulated a reason for its action, the burden next shifts to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. In a non-selection case such as the present one, a complainant may show that an employer's reason for the non-selection was pretext by demonstrating that his qualifications were "plainly superior" to those of the selectee. Wasser v. Dep't. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037. 1048 (10th Cir. 1981). Complainant maintains that he had worked for the Agency for longer than SSP and was at a higher pay level than she was but he has not shown that his qualifications were so "plainly superior" than hers as to establish that his nonselection was discriminatory. The record does show, however, that SSP worked closely with M1 on a regular basis and filled in for her when M1 was unavailable, while Complainant worked under DFM1. While Complainant maintains he could have performed the same functions, M1's decision to select as her replacement someone with whom she had worked closely on a regular basis performing the same functions as required for the position is not so unreasonable as to establish pretext.
Complainant next argues that both he and M1 were participants in the Agency's Employee Leadership Development Program (ELD) while SSP was not. Complainant contends that the ELD held that participants should "be given first priority for detail opportunities as part of their development" and that he should therefore have been detailed into the assignment instead of SSP. The Agency contends that the position was not a developmental detail used to teach employees additional leadership skills but was an emergency placement to quickly cover critical functions after the office shake-up caused by the sudden placement of DFM1 on administrative leave. A review of the record supports the Agency's characterization in this regard.
Complainant next argues that M1 made discriminatory statements about himself and DFM1. The AJ found that M1's comments such as "dumb ass" and "retard," while unprofessional, did not constitute evidence of discrimination based on race, color, sex, or national origin, and noted that Complainant had not claimed disability as a basis of discrimination. With regards to allegations that M1 had been heard to say that Complainant and DFM1, both of whose national origin is Panamanian, should "go back to where he came from," the AJ noted that the witnesses, while credible, could not identify when the comments were made or the context, and found that Complainant failed to establish a nexus between such comments and Complainant's nonselection. Following a review of the record we agree.
Following a review of the record we find that the AJ's findings of fact are supported by substantial evidence and we discern no basis to disturb them.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established, by a preponderance of the evidence, that discrimination occurred, and we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 12, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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