01a43812
12-29-2004
Floyd E. Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Floyd E. Parker v. United States Postal Service
01A43812
December 29, 2004
.
Floyd E. Parker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43812
Agency No. 4H-390-0069-03
Hearing No. 130-2004-00046X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that complainant, a Supervisor, Customer Services,
EAS-17, at the agency's Meridian, Mississippi Main Post Office,
filed a formal EEO complaint on June 2, 2003, claiming that the agency
discriminated against him on the bases of race (African-American) and age
(D.O.B. 10/4/47) when:
on March 12, 2003, he was not promoted to the position of Station Manager,
North Station, Meridian, Mississippi.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a Motion to
Dismiss or in the alternative, a Motion for a Decision Without a Hearing.
In its motion, the agency argued for the AJ to issue a decision without
a hearing in favor of the agency, finding no discrimination. The agency
further argued that complainant failed to established a prima facie case
of race and age discrimination. The agency argued that assuming arguendo
complainant established a prima facie case of race and age discrimination,
management articulated a legitimate, non-discriminatory reason which
complainant failed to show was pretextual. Specifically, the agency found
that four candidates, including complainant, applied for the position of
Station Manager, EAS-20. The agency found that the Selecting Official
(SO) interviewed all of the four candidates for the subject position.
The agency noted that the SO selected selectee, a younger Caucasian
female for the subject position because she was the best qualified for
the subject position based on her knowledge, motivation and experience.
The agency noted that in his affidavit, the SO stated that he used
the following criteria: knowledge, talent, skills, attitude, prior
demonstrated performance, and motivation level in his determination
to select selectee for the subject position. The SO stated that the
selectee was chosen based on the following reasons: her motivation;
professionalism; good work ethnic; punctuality; setting a good example
for other employees; great attitude; and good work record.
Moreover, the SO stated that he did not select complainant for the subject
position because he "did not present himself through his attitude,
motivation, work ethics, work history and professionalism to be the
applicant to be selected that �Best Meets,' the criteria used to select
the �Highest Quality' Manager to meet current and future needs of the
organization." The SO also stated that he did not select complainant
based on the following reasons: lack of respect for others; lack of
professionalism; poor work history; a downgrade from EAS-20 to EAS-13;
removal from agency employment at one point due to an altercation,
though there was a subsequent reinstatement; and being the subject
of a co-worker's sexual harassment claim. Furthermore, the SO stated
that complainant's race and age were not factors in his determination
to select selectee for the subject position.
On March 31, 2004, the AJ found no dispute of material fact, and proceeded
to issue a decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
and age discrimination because the selectee, a younger female, not in
complainant's protected classes, was selected for the Station Manager
position.<1> The AJ further concluded that the agency articulated
legitimate, non-discriminatory reasons for its actions. The AJ found
that while complainant was qualified, he was not the best candidate for
consideration by the SO. 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. With respect to complainant's claim that
the selectee was preselected for the subject position, the AJ concluded
that complainant failed to proffer evidence that the agency's selection
decision was based on a basis prohibited by Title VII or the ADEA.
Furthermore, the AJ concluded that favoritism by itself does not violate
Title VII (or the ADEA) if it is not grounded on a prohibited basis.
The agency's final action, dated April 9, 2004, implemented the AJ's
decision.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final action implementing the AJ's decision
was proper and is AFFIRMED.
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
December 29, 2004
__________________
Date
1The AJ noted while complainant did not allege sex discrimination, he
could also have established a prima face case of sex discrimination.
The AJ however concluded that complainant did not establish that
the agency's articulated reasons were a pretext to mask unlawful
discrimination.