0120072277
08-06-2007
Dewayne A. Goodman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Dewayne A. Goodman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120072277
Hearing No. 551-2006-00048X
Agency No. 4E-990-0043-05
DECISION
On April 5, 2007, complainant filed an appeal from the EEOC Administrative
Judge's (AJ) January 24, 2007, 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. 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 final order.
At the time of events giving rise to this complaint, complainant worked
as a Supervisor, Customer Services, EAS-17, at the agency's Caldwell,
Idaho Post Office. On September 14, 2005, complainant contacted an EEO
Counselor and filed a formal EEO complaint on November 7, 2005 alleging
that he was discriminated against on the basis of reprisal for prior
protected EEO activity [arising under Title VII] when, on September 8,
2005, he was notified that he had not been selected for the position
of Supervisor, Customer Services, EAS-17, advertised under Vacancy
Announcement #9905067, at the Nampa, Idaho Post Office.1
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 AJ. Complainant timely requested a hearing.
Over complainant's objections, the AJ assigned to the case granted the
agency's June 26, 2006 motion for a decision without a hearing and issued
a decision without a hearing on January 24, 2007. When the agency failed
to issue a final order within forty days of receipt of the AJ's decision,
the AJ's decision finding that complainant failed to prove that he was
subjected to discrimination as alleged became the agency's final action
pursuant to 29 C.F.R. � 1614.109(i).2
In her decision, the AJ found that complainant established a prima
facie case of reprisal discrimination, but further found that the agency
articulated a legitimate, nondiscriminatory reason for its action which
complainant failed to prove was pretext for discrimination. The AJ
found that the explanation by the selecting and reviewing official
(SRO) was credible; namely, the selectees (S1 and S2) for the position
impressed the SRO with their responses to the interview questions.
The AJ noted that the SRO provided specific summaries of the responses
and explained why they impressed him. Additionally, the SRO stated
that complainant's responses to the interview questions ranked last
out of the four candidates who were interviewed. Finally, the AJ found
that complainant "relies heavily on subjective belief and speculation"
and thus failed to show pretext. Specifically, complainant asserted
that he gave thorough responses to the interview questions and "did
great" during the interview. Additionally, complainant argued that he
was more qualified than S2 based on his experience and qualifications.
However, the AJ found that the evidence showed that complainant and S2
had comparable qualifications. The AJ found no evidence of pretext,
and therefore, no discrimination on the alleged basis.
On appeal, complainant makes several arguments. First, he asserts
that he was prejudiced by the AJ's failure to include the allegedly
undisputed material facts in the Notice of Intent to Issue a Decision
Without a Hearing. Second, he asserts that the agency's failure to send
him a copy of its response to the Notice of Intent constituted harmful
error because it resulted in him not having an opportunity to reply to
the agency's response.3 Third, he asserts that the AJ erred in issuing
a decision without a hearing because there was a "credibility issue"
concerning the SRO.4 Finally, he asserts that his qualifications for
the position are "plainly superior" to S2's.5 In reply, the agency
requests that we affirm the AJ's decision.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
In this case, assuming complainant established a prima facie case
of reprisal discrimination, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action; namely, complainant
was not selected for the position based on the results of the interview
process. According to the SRO, complainant gave brief responses to the
interview questions and his interview performance ranked fourth out of
the four candidates who were interviewed. The SRO asked each of the
interviewees the same series of situational questions. According to
the SRO, complainant's interview lasted no longer than fifteen minutes
while S2's interview lasted almost an hour. During his deposition,
complainant testified that he was asked what he would do to improve
sales and that he responded with the following: "rearrange the postal
store so it's more definitive for the customers when they walk through
the door. Move items that are more purchased, make them more easily
accessible for the customers. And then also watch the window clerks
and make sure that staffing is high at peak times and times of customers
coming through the door." Complainant claims that all of his responses
were equally thorough. In contrast to complainant's three-sentence
response to the revenue question, the SRO testified that S2 "did an
excellent job" in responding because he discussed how he could draw
from his past experience in increasing revenue in the private sector
and apply it to the agency. Additionally, the SRO described in detail
how the S2 provided "well-organized" and "really complete" answers to
the remaining questions.
Next, we find that complainant failed to show that the agency's
explanation is a pretext for discrimination. The agency has broad
discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Complainant may be
able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Here, complainant has failed to
make this showing. In so finding, we note that although complainant has
nine years of supervisory experience within the agency compared to S2's
four years, S2 has over thirteen years of supervisory experience in the
private sector as a Chief Operating Officer, Regional Warehouse Manager,
General Manager, and Production Manager. Additionally, while complainant
has more formal postal training than S2, S2 has both an undergraduate
and a graduate degree in Business while complainant did not. We find
that the evidence in the record is insufficient to establish pretext.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.6 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the AJ's
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2007
__________________
Date
1 The announcement stated that there were two available positions,
and two individuals were eventually selected.
2 The agency finally issued its final order on April 27, 2007, stating
that it was implementing the AJ's finding of no discrimination.
3 Complainant has not explained in what way he would have argued his
case differently had he been given the opportunity to respond to the
agency's response to the AJ's Notice. In any event, we note that the
AJ considered the agency's and complainant's responses to the Notice
of Intent. Therefore, we decline to remand this case for a hearing on
this basis.
4 Complainant argues that a "credibility issue" arises where the
selecting official maintains he selected the best qualified candidate for
a position. However, we find that complainant has provided no evidence
that there is a genuine issue as to credibility that would warrant a
hearing.
5 Complainant states in his appeal that he is not contesting the
qualifications and selection of S1. That is, he is only asserting that
he should have been selected instead of S2.
6 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120072277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036