Charles E. May, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120082083 (E.E.O.C. Aug. 27, 2009)

0120082083

08-27-2009

Charles E. May, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Charles E. May,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120082083

Hearing No. 440-2007-00278X

Agency No. 4J-000-0002-07

DECISION

On March 31, 2008, complainant filed an appeal from the agency's March

4, 2008 final action concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

For the following reasons, the Commission AFFIRMS the agency's final

action.

At the time of events giving rise to this complaint, complainant worked

as a Manager, Maintenance, EAS-25, at the Chicago, Illinois Processing

and Distribution Center.

On May 8, 2007, complainant filed an EEO complaint wherein he claimed that

he was discriminated against on the basis of his race (African-American)

when on March 17, 2007, he was not selected for the position of Manager,

Maintenance Operations (PCES), Great Lakes Area.

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 but the AJ subsequently dismissed the request with prejudice

based on complainant's failure to comply with several provisions of the

Acknowledgment and Scheduling Order. The AJ remanded the complaint to

the agency and the agency issued a final action pursuant to 29 C.F.R. �

1614.110(b).

The agency determined that complainant failed to prove that he was

subjected to discrimination as alleged. According to the agency,

on August 22, 2006, a new Postal Career Executive Service (PCES)

01 position of Manager, Maintenance Operations (Area) was created.

The agency stated that in response to a request from the Area Manager,

Operations Support, the Manager, Maintenance Policies & Procedures at

agency headquarters provided the names of eight employees who were on the

current succession plans for Maintenance Policies & Logistics Planning

and/or Maintenance Technical Support Center. Three candidates from

this list were recommended for interviews by the former Area Manager,

Maintenance Support. Several other employees expressed interest in

being considered for the new position and four of these candidates were

interviewed. The individual selected for the position was a Caucasian

Maintenance Manager at the Indianapolis Processing & Distribution Center.

He had 34 years of experience with the agency. The agency determined that

complainant failed to establish a prima facie case of race discrimination.

The agency stated that complainant was not qualified for the position.

According to the selecting official, complainant's lack of qualifications

stemmed from his performance metrics in the Chicago Processing and

Distribution Center. The agency noted that the selecting official

stated that complainant had a history of poor findings in prior audits

and failure to adequately correct deficiencies from prior reviews.

The selecting official further stated that agency headquarters' had

previously cited Chicago's maintenance center for hazardous conditions

and that these issues were regularly left unresolved. The agency cited

these factors as part of its determination that it articulated legitimate,

nondiscriminatory reasons for complainant's nonselection.

The agency observed that complainant claimed pretext by virtue of the fact

that the agency failed to follow the Corporate Guidelines for Succession

Planning. The agency stated that its actions were in compliance with

its regulations. According to the Great Lakes Area Vice President,

a corporate succession plan was not established for the position

due to the fact that the position was upgraded to executive status.

The agency noted that complainant claimed that he had been treated

improperly when he was not detailed to an Area Maintenance position.

However, the selecting official stated that to the best of her knowledge

complainant had not asked to be detailed to such a position and in

contrast to complainant's claim, the selectee had not been detailed

to an Area Maintenance position prior to his selection. Moreover, the

selecting official stated that complainant would not have been detailed

because he had much improvement to accomplish in his current position.

Thereafter, complainant filed the instant appeal.

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).

For purposes of analysis, we will assume, arguendo, that complainant has

established a prima facie case of race discrimination. We find that the

agency articulated legitimate, nondiscriminatory reasons for complainant's

nonselection. The record indicates that the selectee possessed relevant

skills for the position in several areas. According to the selecting

official, the selectee demonstrated during his interview his technical

knowledge and how he was able to drive performance at his facility and

within his cluster. The selecting official stated that his approach with

operations was very proactive and he took responsibility for operational

performance. Further, the selectee was described as being a data driven

analytical thinker, with a team approach to maintenance management.

Moreover, the agency stated that complainant lacked the necessary

qualifications for the position based on deficiencies in the Chicago

facility. The agency cited the fact that complainant had a history of

poor findings in prior audits, failure to adequately correct deficiencies

from previous reviews, and the Chicago maintenance center had been cited

for hazardous conditions that were frequently left unresolved.

Upon review of the record, we find that complainant has not established

that the agency's reasons for his nonselection were pretext intended to

mask discriminatory motivation. Complainant has not shown that he was

discriminated against because of his race when he was not selected for

the position.

The agency's final action finding no discrimination is AFFIRMED.

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

August 27, 2009

__________________

Date

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0120082083

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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