01982563
12-19-2000
Emily M. Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Emily M. Thompson v. United States Postal Service
01982563
December 19, 2000
.
Emily M. Thompson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01982563
Agency No. 1J613100296
DECISION
Emily M. Thompson (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that she was discriminated against on the bases of
color (Black--light complexion) and disability (lupus) and retaliated
against due to her prior EEO activity under Title VII when she was not
promoted to the position of Administrative Specialist.<2>
The record reveals that during the relevant time, complainant
was employed as a Full-time Office Clerk at the agency's Chicago,
Illinois Mail Transport Equipment Center. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on February 2, 1996. At the conclusion of the
investigation, complainant was informed of her right to request a hearing
before an EEOC Administrative Judge or, alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
requisite regulatory time period, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of color discrimination because she failed to
establish that she was treated less favorably than individuals outside
her protected group. The agency went on to note that it articulated a
legitimate nondiscriminatory reason for complainant's non-selection,
namely, that the selecting official (SO) selected the individual he
felt would best serve the needs of the position. SO noted that he
considered the applicants' abilities in the areas of management and
monitoring the work of others, meeting deadlines, and managing time
and budget. The agency then noted that complainant failed to establish
that this articulation was a pretext to mask a discriminatory animus.
In answer to complainant's claim that she was better qualified then the
selectee because she had worked in the position in a temporary capacity,
whereas the selectee had little experience, the agency held that it
was not required to choose the most experienced candidate and that the
selectee was �more applicable� to the position.
In addressing complainant's claim of disability discrimination, the agency
found that the record did not establish that complainant was disabled with
the meaning of the Rehabilitation Act.<3> The agency also found that SO
did not consider complainant's medical condition to be a disability.
The agency concluded that even if complainant established a prima
facie case of disability discrimination, she failed to establish that
its articulated legitimate reason was a pretext for discrimination.
The agency concluded that complainant failed to establish that her
non-selection was discriminatory.
On appeal, complainant contends that SO was aware of her medical condition
and reiterates claims made in her affidavit that SO often made negative
statements about her health. Complainant also elaborates on her reprisal
claim, noting that she filed a discrimination complaint in February
1989 after the agency did not select her for the same position at issue
in this case in favor of a less-qualified White applicant. The agency
requests that we affirm its FAD.
FINDINGS AND ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant failed
to establish by a preponderance of evidence that she was subjected
to discrimination.
Contrary to the agency, we find that complainant established a prima facie
case of color discrimination. Complainant applied and was qualified
for the position, but was not selected in favor of a Black individual
with a darker complexion. Moreover, we assume for the purposes of this
decision that complainant established a prima face case of disparate
treatment on the basis of disability. We find, however, that complainant
failed to establish a prima facie case of reprisal. Complainant cited
prior protected activity that took place in February 1989, more than 6
years before the November 1995 selection at issue herein. Furthermore,
although this 1989 complaint involved the subject position, it did not
name or otherwise involve SO. On the bases of these facts, we find that
complainant's prior EEO activity has an insufficient causal connection
to the non-selection at issue.
The agency articulated a legitimate, nondiscriminatory reason for not
selecting complainant. Specifically, SO stated that he interviewed
the five recommended applicants, including complainant, and chose the
individual he felt would best serve the needs of the position. He noted
that the factors he considered had to do with managing and monitoring
the work of others, meeting deadlines, and managing time and budget.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that complainant's qualifications are observably
superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037. 1048
(10th Cir. 1981); Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Here, complainant noted that she was
better qualified because she successfully worked in the position in
question in April 1991, December 1991 and from February 1994 until
the position was filled by the selectee in November 1995. SO himself
recommended complainant for the position, writing that she performed the
job in a very competent and very efficient manner. Complainant also
noted that she trained the selectee and that SO led complainant to
believe that she would get the position due to her qualifications.
A review of the qualifications of the selectee and complainant confirm
that both are qualified for the position, meeting all the noted
requirements. The SO's somewhat vague explanation for why he chose
the selectee over complainant , along with the fact that complainant
was serving very successfully in the position before the selection was
made, cast some doubt on SO's explanation. However, we find nothing to
support complainant's claim that her color and/or disability motivated
this selection, other than the fact that the selectee has a darker
complexion and, presumably, is not disabled. Complainant herself noted
that SO may have given the job to the selectee because he believed that
complainant was �too nice� to the clerks who worked in the office and
that someone from outside the facility would therefore be a better choice.
While this is not the most admirable reason for making a selection, it is
not discriminatory under federal EEO law. Moreover, SO's complimentary
review of complainant's work casts doubt on the argument that he held
a discriminatory animus towards her. In order to prove that she was
subjected to discrimination, complainant must establish that, more likely
than not, SO's actions were motivated by discrimination. After a careful
review of the record, we find that complainant failed to meet this burden.
Accordingly, the agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 19, 2000
__________________
Date
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
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although the agency alleged that complainant dropped the retaliation
claim, complainant's affidavit clearly states that she believes she was
not selected for the position in question due to her color, disability
and prior EEO activity.
3The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.