01a55816
05-04-2006
Geraldine B. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Geraldine B. Smith v. United States Postal Service
01A55816
May 4, 2006
.
Geraldine B. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55816
Agency No. 4C-440-0001-04
DECISION
Complainant initiated an appeal from a final decision 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. For the following reasons, the Commission AFFIRMS the
agency's final decision.
The record reveals that during the relevant time, complainant was an
applicant for employment<1> at the agency's facility in Akron, Ohio
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on November 3, 2003, alleging that she was discriminated
against on the bases of race (African-American) and reprisal for prior
EEO activity when:
In August 2003, complainant was not interviewed for the position of
EEO Dispute Resolution Specialist, EAS 17.
In August 2003, management delayed the processing of complainant's Form
50 (promotion).
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. In the
absence of any timely response from complainant, the agency issued a
final decision, dated August 1, 2005.
In its final decision, the agency concluded that complainant failed to
establish a prima facie case of either race or reprisal discrimination
regarding either claim. Specifically, the agency found that of seven
applicants for the subject position, four were selected for an interview.
Of the three not selected for an interview, one applicant was Caucasian,
as was the selectee. The other applicants' races are unknown.
Additionally, the agency found that the panel members responsible
for review of the application packages and selecting the interviewees,
recall that complainant's knowledge, skills and abilities were weak when
compared to other applicants and one panel member recalled that those
selected for interviews had achieved significantly higher rank in the
agency than complainant at the time of the selection process.
Regarding claim (2), the agency found that complainant's Form 50,
which effected complainant's promotion in August 2003, was delayed
because complainant had indicated she was considering a voluntary early
retirement action (VERA) which would have affected her promotion.
Accordingly, the agency found that even if complainant had established
a prima facie case of race or reprisal discrimination, that complainant
had failed to rebut the agency's legitimate, non-discriminatory reasons
for its actions.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission concurs with the agency's determination that even if,
for arguments' sake, we assume that complainant established a prima
facie case of race or reprisal discrimination, she has not shown that the
agency's reasons for its actions are not worthy of belief and a pretext
for discrimination. Specifically, we find that complainant has not
shown that her qualifications and application materials were superior
or at least equivalent to those presented by the applicants granted an
interview. Moreover, at least one panel member, concurring with the
panel's ultimate interview selections, was unaware of complainant's
race or prior EEO activity.
The Commission further finds (regarding claim (2)), that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In reaching this conclusion, we note that complainant has not disputed
the agency's claim that she was considering retirement at the time
her promotion was being processed in August - September 2003, which,
we find, would logically have delayed the processing of any further
pending personnel actions.
Therefore, after a careful review of the record, we affirm the agency's
final decision finding no discrimination.
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
May 4, 2006
__________________
Date
1Complainant was employed as a Human Relations Specialist for the agency
in Cleveland, Ohio at the time the complaint was filed.