01980923
04-07-2000
Charles A. Bibeau, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles A. Bibeau v. United States Postal Service
01980923
April 7, 2000
Charles A. Bibeau, )
Complainant, )
) Appeal No. 01980923
v. ) Agency No. 1H-311-1039-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
bases of national origin (Hispanic), color (light brown), age (Date of
Birth 12/6/45), and reprisal (prior EEO activity) in violation of Title
VII of the Civil Rights Act of 1964, 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.<1> Complainant alleges he was
discriminated against when the agency did not select him for a custodial
position for which he was qualified. The appeal is accepted pursuant to
64 Fed Reg 37,644, 37,659 (1991) (to be codified at 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the FAD.
ISSUE PRESENTED
The issue presented is whether complainant has established, by
preponderant evidence, that the agency discriminated against him on the
basis of national origin,<2> color, age, and reprisal.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a mail processor, at the agency's Macon, Georgia Processing
and Distribution facility. Complainant alleged that in 1995 he requested
a transfer from a Tour 3 mail processing position (on the evening shift)
to a Tour 2 custodian position (on the day shift) at the facility.
He continued to renew his request over the next year. On April 10,
1996, a representative of the human resources office asked him if he
was still interested in the custodian position because she may have a
position available. He answered yes. Again, on April 17, 1996, the
same representative asked him if he was interested in another custodial
position that may be available. Complainant again responded yes.
However, the agency filled the first position (Position 1) with a white
employee from the maintenance/custodian craft (Selectee 1). Initially,
the agency chose someone from the maintenance/custodian craft for the
second position (Position 2). When that person did not accept the
position, the agency chose a Hispanic, light brown employee from the
mail processing craft (Selectee 2).
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently, he filed a complaint on July 15, 1996. At
the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.<3>
The FAD concluded that complainant established a prima facie case of
reprisal discrimination. However, the complainant did not show that the
agency had an intent to discriminate against him because of his prior
EEO activity.
In addition, the FAD concluded that complainant failed to establish a
prima facie case of national origin, color, or age discrimination because
he presented no evidence that similarly situated individuals not in his
protected classes were treated differently under similar circumstances.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas three-part
analysis to age discrimination cases). For complainant to prevail, he
must first 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. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In cases where the
complainant alleges age discrimination, the complainant must establish
that age was a determinative factor in the sense that "but for" his age,
the complainant would not have been subjected to the action at issue.
See Loeb, supra.
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show: (1) that he engaged in protected
activity; (2) that the alleged discriminating official was aware of the
protected activity; (3) that he was disadvantaged by an action of the
agency contemporaneously with or subsequent to such participation; and
(4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that it did not transfer complainant to Positions 1
or 2 because Selectee 1 received an in-craft transfer and Selectee 2
was a better qualified applicant.
According to the Section 261.31 of the agency's handbook, career vacancies
may be filled by promotion, reassignment, transfer, or the register.
Also, the agency has authority (under the Selections Methods of the
National Bargaining Agreement) to fill assignments based on preferred
assignment registers. In light of this discretion, the agency gives
preferential hiring treatment to qualified in-craft employees first.
Two applicants submitted requests for in-craft transfers for Position 1.
Based on his qualifications, Selectee 1 received the assignment.
There were no in-craft applicants for Position 2. In the absence of
qualified in-craft applicants, the agency selects qualified applicants
from other crafts within the agency. Three applicants from other
crafts submitted their requests for reassignment to the custodian craft.
The complainant submitted a request in 1995, and the selectee submitted
his request in January 1996. The third candidate submitted her request
at an unknown date. Because their requests were timely filed, the three
applicants were considered for Position 2. The third candidate was not
considered because of her employment record. The agency reviewed records
for Selectee 2 and complainant. The agency believed that Selectee 2 had
a better evaluation (Satisfactory and Above Average ratings), a better
employment history, and more seniority. Therefore, Selectee 2 received
the assignment.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that complainant's qualifications are "plainly" or
"manifestly" superior to those of the selectee's. Bauer v. Bailar,
647 F.2d 1037 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561; Jenkins v. Department of the Interior, EEOC
Request No. 05940284 (March 3, 1995). We find that complainant has
failed to meet this burden.
The complainant cannot demonstrate that his qualifications were "plainly"
superior to those of Selectee 1 or 2. Selectee 1 was already an employee
of the custodian craft. The complainant did not have this custodian
experience, and he was not "plainly" superior to Selectee 1. In addition,
Selectee 2 had a better evaluation than complainant (who only received
a Satisfactory rating on his evaluation), had a stronger work history
and attendance record, and had years of quality service to the agency.
While Selectee 2 had a work related injury and one industrial accident, he
received a higher rating for safety on the evaluation than the candidate.
The agency considered these and other factors before determining that
Selectee 2 was the better candidate. As a result, complainant was not
"plainly" superior to Selectee 2.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
April 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 In the original complaint, the complainant claimed discrimination based
on race. In the FAD, the agency identified the claim as discrimination
based on national origin (Hispanic).
3 Complainant alleges that he never received a copy of the investigative
file and appeal rights. Therefore, he did not know that he could have
a hearing before an EEO Administrative Judge (AJ). The agency provided
certified mail receipts that the investigative file and appeal rights
were mailed to complainant's attorney of record, on April 16, 1997.