01a00173
04-03-2000
Coy L. Ford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Coy L. Ford, )
Complainant, )
) Appeal No. 01A00173
v. ) Agency No. 1G-761-1118-96
) 1G-761-0165-98
William J. Henderson, ) 1G-761-0200-98
Postmaster General, ) Hearing No. 310-98-5412X
United States Postal Service ) 310-99-5368X
(S.E./S.W. Areas), ) 310-99-5407X
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), sex (male),
reprisal (prior EEO activity), and age (58), 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: (1) he was not selected for the position of Supervisor,
Maintenance Operations, EAS-16, on July 20, 1998; (2) he was not referred
for the position of Supervisor, Maintenance Operations, EAS-16, on May
22, 1998; and (3) he was not referred for the position of Supervisor,
Maintenance Operations, EAS-16, in August 1998. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Custodian/Laborer, PS-3, at the agency's Fort Worth, Texas facility.
The record also reveals that from 1990 until 1995, complainant was
employed by the agency as a Supervisor in Building Services. When the
agency underwent a reorganization and reduced the number of supervisors in
Fort Worth, complainant was returned to the craft position he currently
holds.<2> During this time, complainant worked several details as the
Acting Supervisor of Maintenance Operations.
The record reveals that complainant applied and was not selected for the
positions referenced above. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed formal
complaints on September 6, 1996, August 24, 1998, and October 20, 1998.
At the conclusion of the investigations, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a consolidated hearing, the AJ
issued a recommended decision finding no discrimination.
The AJ concluded that although complainant raised an inference of
discrimination in all three cases, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, members of the
Review Panels for each of the vacancy's testified that complainant's
applications lacked sufficient detail with respect to his knowledge,
skills and abilities required of the positions. All panel members
testified that complainant's applications were more brief than those of
the selectees, and failed to go into detail with respect to the �STAR�
(Situation, Task, Action, Result) elements.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that although complainant possessed more postal supervisory experience,
his application was not as detailed with respect to the STAR elements as
the other candidates, and thus, he ranked lower than other candidates.
For example, complainant's applications did not list as many specific
actions taken in the areas required for the positions. The AJ noted that
most of complainant's frustrations appeared to stem from the earlier
reorganization, and his subsequent downgrade to a non-supervisory
position. Also, the AJ noted that complainant had not been promoted
back to a supervisory position since that time. In that regard, the
AJ mentioned that testimony revealed that the position complainant
previously occupied had since been upgraded from an EAS-11 to EAS-16,
due to additional responsibilities in the areas of building maintenance,
mechanics and electronics.
The AJ also found she was not persuaded that complainant was subjected
to discrimination on any bases since all panel members, some of whom were
in complainant's age group and many of whom did not know of complainant's
prior EEO activity, collectively believed that complainant's applications
were not competitive with those of his co-workers. She thus found that
discrimination did not motivate the decisions.
On September 7, 1999, the agency issued a final decision adopting the
AJ's recommended decision. This appeal followed.
On appeal, complainant restates arguments previously made at the hearing.
Complainant also argues that the agency failed to follow its procedures
when it failed to select him for positions. The agency responds by
restating the position it took in its FAD, and requests that we affirm
its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's sex, race or age. After a
review of the record, we find the agency's reasons for its actions
supported by the record and discern no basis to disturb the AJ's finding
of no discrimination. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
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 3, 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.
2Complainant filed an EEO complaint regarding the reorganization, but
did not ultimately pursue the matter.