Coy L. Ford, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00173 (E.E.O.C. Apr. 3, 2000)

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.