01994111
02-18-2000
Gladys Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Areas) Agency.
Gladys Smith, )
Complainant, )
) Appeal No. 01994111
v. ) Agency No. 4A-110-0099-97
) Hearing No. 160-97-8447X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Areas) )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination 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> Specifically, the complainant alleged discrimination
on the bases of race (Black), national origin (African-American), sex
(female), age (date of birth: 08/03/51), and reprisal. The appeal is
accepted in accordance with EEOC Order No. 960.001.
The complainant, a Financial System Coordinator, filed a formal EEO
complaint with the agency on or about November 27, 1996, alleging that
the agency had discriminated against her. Specifically, complainant
alleged that she was discriminated against when she was not selected
for an interview for the position of Supervisor, Accounting Services,
EAS-21 and when she was subsequently not selected for that position.
The record reveals that the complainant was one of 10 applicants for the
position of Supervisor, Accounting Services, EAS-21. The 10 applicants
consisted of five Caucasian males, one Black male, two Caucasian females
and two Black females, all over the age of 40. The complainant was not
among the three applicants recommended for the position by the agency's
review panel. Of the three applicants recommended by the panel, two
were Caucasian males who were identified as being of Italian American
and Jewish American national origin.<2> The panel also recommended
one Black male of African-American national origin. The selectee was
a Caucasian male.
The complaint was investigated by the agency. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued his Findings and Conclusions, finding
no discrimination. The agency adopted the AJ's recommendation.
In the case of employment discrimination, the complainant has the initial
burden of proving a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 8, 1996).
In analyzing an allegation of discriminatory non-selection, the elements
of a prima facie case are: (1) the complainant must show that she is a
member of a protected group; (2) the complainant must have applied and was
qualified for the position; (3) the complainant must have been considered
for and denied the position; and (4) another employee of similar
qualifications, who was not a member of the complainant's protected
group, was selected at the same time the complainant's application was
denied. McDonnell Douglas Corp.; Bundy v. Jackson, 641 F.2d 934, 951
(D.C. Cir. 1981). Once the complainant meets this burden of proving
a prima facie case, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). The complainant must then prove, by a preponderance of the
evidence, that the legitimate reason articulated by the agency was not its
true reason, but was pretext for discrimination. Id. at 256; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). The complainant must show
that a discriminatory reason more likely motivated the agency or that
the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 253. Disbelief of the agency's articulated reasons does
not compel a finding of discrimination as a matter of law. However,
disbelief of the reasons put forward by the agency, together with
the elements of the prima facie case, may suffice to show intentional
discrimination. Jones v. Department of Veterans Affairs, EEOC Request
No. 05940013 (November 2, 1995)
In his Findings and Conclusions, the AJ first concluded that
complainant failed to establish a prima facie case of age or reprisal
discrimination.<3> The AJ noted that all three candidates recommended
for the disputed position were over the age of 40. One of the recommended
candidates was substantially older than the complainant and the selectee
was only four years younger than the complainant. Regarding reprisal,
the AJ stated that the lack of proximity in time, i.e., 12 years between
the prior EEO activity, and, also, lack of knowledge or involvement
by the agency officials identified by complainant as having retaliated
against her negated any inference that there was any causal connection
between the complainant's non-selection and the prior protected EEO
activity. The AJ also concluded that even if a prima facie case of age
discrimination and reprisal were established, the agency had articulated
legitimate nondiscriminatory reasons for not selecting the complainant;
namely, that the complainant was not the best qualified applicant. The AJ
noted that panel members testified that the complainant's application did
not reflect sufficient supervisory experience nor recent demonstrated
knowledge in accounting. The AJ further noted that, in contrast, the
selectee's supervisory experience was extensive, dating back to 1981,
and that at the time of the selection, the selectee was a Supervisor of
Accountable Papers and Coordinator of Financial Services, two functions
integral to accounting services and which enhanced consideration of the
selectee. The AJ noted that the selecting official, whose testimony he
found credible, had detailed the selectee to the disputed position while
the complainant was not detailed to that position despite her request.
The AJ further noted that while a detail to the disputed position may
have enhanced the complainant's qualifications, the detail without more,
would not have led to her selection since the selectee, even without the
detail, had 15 years of supervisory experience in different positions.
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 regarding
whether or not discriminatory intent existed 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
Findings and Conclusions summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis to
disturb his decision. Therefore, after a careful review of the record,
including the complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
February 18, 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 Assistant1 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.
2The Commission notes that being Jewish relates to a religion and not
to national origin.
3To establish a prima facie case of reprisal discrimination, the
complainant must show that: (1) the complainant engaged in protected
activity; (2) the alleged discriminating official was aware of the
protected activity; (3) the complainant was adversely affected by an
action of the agency; and (4) there is a causal connection between the
protected activity and the adverse employment action. See Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). The complainant
may establish a prima facie case of age discrimination by showing that:
(1) the complainant is a member of a statutorily protected group under
the ADEA, and (2) a similarly situated employee outside his protected
group or significantly younger than the complainant was treated more
favorably. McCuen v. Home Ins. Co., Inc., 633 F.2d 1150 (5th Cir. 1980).