Gladys Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Areas) Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01994111 (E.E.O.C. Feb. 18, 2000)

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).