0120091256
07-13-2009
Anthony L. French, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony L. French,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091256
Hearing No. 532-2008-00002X
Agency No. 4C-430-0065-07
DECISION
On January 15, 2009, complainant filed an appeal from the agency's
December 16, 2008 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processor Clerk (manual) at the agency's City Gate P&D
Plant in Columbus, Ohio.
On June 1, 2007, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Non-white/African American),1
sex (male), color (tan), disability (Hip/Knee/Other),2 age (67), and in
reprisal for prior protected EEO activity when:
on April 17, 2007, complainant was notified that he was not recommended
for the position of Supervisor, Accountable Paper.
By letter dated June 11, 2007, the agency accepted complainant's complaint
for investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing. By Order dated November 17, 2008, the AJ dismissed complainant's
request for a hearing and remanded the matter to the agency for a final
decision. Thereafter, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In its final decision dated December 16, 2008, the agency concluded
that complainant failed to prove that he was subjected to discrimination
as alleged. The agency found that the review/recommendation committee
members (RCMs) provided a legitimate, nondiscriminatory reason for
not recommending complainant: that selectee's knowledge, skills, and
abilities (KSA) responses "were more detailed, thorough and responsive"
than complainant's responses. The agency further found that complainant
failed to establish that its legitimate, nondiscriminatory reason was
pretext for discrimination and/or retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's final decision finding
no discrimination is improper. He also states that the discrimination
he suffered "transcends [his] individual claim" and that there is
"collusion/conspiracy" between "[t]he Eastern Area [of the USPS], the
AJ, and the [a]gency." He finally asserts that: 1) there is evidence of
retaliation because the selecting officer (SO) was aware of his prior EEO
activity, 2) he has shown that the agency's legitimate nondiscriminatory
reason is pretext for discrimination because the selectee was not as
experienced as complainant "and was given the job" just because he was
a white male, and 3) that the seven year age difference between himself
and the selectee is sufficient for a finding of discrimination.
On appeal, the agency requests that we affirm its final order.
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").
As a preliminary matter, we address the AJ's decision to dismiss
complainant's request for a hearing and remand the case for an agency
decision. In her Order of Dismissal, dated November 17, 2008, the
AJ stated that complainant engaged in contumacious conduct during a
telephonic pre-hearing conference call. Specifically, the AJ stated
that "[d]uring the course of the telephonic pre-hearing conference,
the complainant repeatedly referred to both the [AJ] and agency
representative...as racists, crooked, perpetrators of fraud...among
other things...Efforts by the [AJ] to have the complainant focus on
the purpose of the conference call were unsuccessful and led to the
[AJ] having to end the call." Upon review of the record, we find that
complainant failed to present sufficient evidence that the AJ abused
her discretion by dismissing the hearing request.
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). He
must generally 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 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).
Assuming arguendo that complainant established a prima facie case of
discrimination and/or retaliation, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action. The record contains
affidavits from all three RCMs. RCM-1's affidavit, dated August 8, 2007,
states that he found that complainant's KSA responses were either worth
zero points or minimally acceptable. RCM-2's affidavit, dated August 1,
2007, states that "[o]nly the employee's written responses to the KSAs
were considered in the selection of the employees to be interviewed."
Finally, she asserts that complainant's responses to the KSAs were
either minimal or that his responses "failed to significantly address"
the questions and that ultimately, based upon his responses, he was
not qualified for the position. RCM-3's affidavit, dated August 13,
2007, states that the top applications, based upon the KSA scores,
were recommended for interviews to the SO. The record also contains
two of the KSA score sheets entitled, "Personnel Selection: KSA
Requirement-By-Applicant Matrix." The matrix sheets reflect that
complainant scored poorly in comparison with the other applicants.
Upon review of the record, the Commission further finds that complainant
failed to establish that the agency's articulated reason for its action
was pretext for discrimination.
While complainant asserts that the SO was aware of his protected EEO
activity and that there is an age difference between himself and the
selectee, as set forth above even assuming arguendo that complainant
established a prima facie case of discrimination and/or retaliation, we
find that the agency articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to establish were pretext.
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 finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
July 13, 2009
Date
1 The complaint and the agency's final decision identified complainant's
race as Non-white. In his EEO Investigative Affidavit dated July 23,
2007, complainant stated that his race is African American.
2 For the purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.
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0120091256
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091256