0120073868
09-22-2009
Glenda A. Higgins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glenda A. Higgins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073868
Agency No. 4G-770-0352-06
Hearing No. 460-2007-00198X1
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 23, 2007, final decision concerning
her equal employment opportunity (EEO) complaint alleging 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. On October 16,
2006, complainant filed formal EEO complaint alleging that the agency
discriminated against her on the bases of sex (female) and color (very,
very fair-light skin) 2 when:
1. on an ongoing basis, she has been denied upward-mobility
opportunities; and
2. on September 7, 2006, she was made aware that she would not
be given an interview for the position of Manager, Customer Services,
EAS-21, Vacancy Announcement #12728.
The record reveals that complainant, a Supervisor, EAS-17, Customer
Services at the Sugar Land, Texas Post Office, alleges that she has
applied for numerous positions that would offer her an opportunity for
career advancement, yet she has never been selected. She maintains that
she has not been selected for any of the positions because of her skin
complexion, as all of the employees selected to fill these positions had
either brown or white complexions. She also indicates that her sex was
a factor because one of the positions had been filled by a male employee.
Additionally, she maintains that many of the selections involved nepotism
or being in the right "clique."
Following an investigation by the agency an Investigative Report
was forwarded to complainant. She was also notified of her right to
request either a final agency decision (FAD) or a hearing before an EEOC
Administrative Judge (AJ) within thirty days. When complainant failed
to request either a FAD or a hearing, a FAD was issued.
The FAD found that complainant failed to demonstrate that the incidents
complained of were due to race, color and/or sex discrimination. The FAD
indicated that with respect to issue 1, complainant's allegation was
untimely because complainant indicated that she had been denied upward
mobility since 2003. Notwithstanding, the FAD stated that, assuming
arguendo complainant established a prima facie case of discrimination,
the agency had articulated legitimate, nondiscriminatory reasons for its
actions. The agency explained that it examined eleven plus opportunities
for which complainant applied but was not selected from 2003 to 2006. The
agency found that one of the vacancies had been cancelled and a lateral
transfer was placed in the position, and with respect to the rest of
the positions, after comparing the qualifications of the selectees to
complainant's qualifications, it was determined that she had not been
the best-qualified applicant for the positions.
Likewise, with respect to issue 2, the FAD found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions;
namely, that it selected the best qualified candidate for the position.
The agency explained that a review of the qualifications of those
applicants recommended for interview as compared to complainant's
qualifications did not reveal that she possessed superior qualifications
to the selectee.3 The FAD found that complainant failed to show that
the agency's articulated reasons were pretext for discrimination.
On appeal, complainant contends that the selectee for the position of
Manager, Customer Services, EAS-21, was not better qualified than she was.
She maintains that the fact that the selectee was a Postmaster did not
outweigh complainant's overall experience. Complainant contends that it
was not mentioned that the selectee was a Postmaster of a "very small"
facility that employed no more than approximately 17 employees, with only
13 rural route carriers. Complainant maintains that she has been a Line
Supervisor for over 25 years and explains that she has supervised many
more employees. She states that while at First Colony Station alone,
she had to supervise approximately 23 rural route carriers, 22 city
carriers, 6 CSBCS4 machines, a passport department, distribution clerks,
custodians, a bulk mailing office, in addition to a postal store and
a five window counter for retail services. Complainant also maintains
that she brought the Houston District into compliance.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision. The Commission finds that the agency articulated legitimate
nondiscriminatory reasons for its actions; namely, that with regard to
issue 1, complainant was not found to be the best qualified person for
the positions that she applied for. Further, with respect to issue 2,
the agency found that complainant was not the best qualified for that
position because the selectee had more recent, prolonged, and immediate
experience than complainant did. The agency explained that the selectee
had been a Postmaster for several years while complainant had only worked
as an Acting Manager at First Colony Station, Customer Services and as
Officer in Charge for approximately fifteen months. Based on the record
and upon review of complainant's arguments on appeal, the Commission finds
that complainant has not shown that the disparities in qualifications
between the selectee and her are "of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the [selectee] over [her] for the job in question."
Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608
(11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
The Commission notes that complainant has not presented any evidence
which remotely indicates that her race, color, and/or sex were considered
with regard to the nonselections in this case. Therefore, the Commission
finds that complainant failed to show that the agency's nondiscriminatory
reasons were pretext for discrimination because the preponderance of
the evidence of record does not establish that discrimination occurred.
Complainant also argues that some of the selectees were preselected
due to nepotism. While we are not convinced that preselection occurred,
we note that we have held that preselection, per se, does not establish
discrimination under Title VII when it is based on qualifications of
the selected individual and not some basis prohibited by Title VII.
McAllister v. United States Postal Service, EEOC Request No. 05931038
(July 28, 1994). Because we find that complainant has failed to offer
probative evidence demonstrating that the agency's decisions were based
on prohibited bases under Title VII. We find that ultimately, the agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find
that the agency's finding that complainant failed to show that she was
discriminated against is supported by evidence in the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 22, 2009
Date
1 Complainant requested a hearing after the time limit for responding
to the agency. The agency had already issued a final agency decision
(FAD). The Administrative Judge (AJ) dismissed complainant's request
for a hearing based on lack of jurisdiction because a FAD had already
been issued and the decision was on appeal at the Commission.
2 Complainant included race (Black) as a basis in her formal complaint,
but stated in her investigative affidavit that she was not claiming race
as a basis.
3 The selected applicant was a Postmaster at EAS Level 18 for the
three years immediately prior to her selection. She was responsible
for all facets of the operation of a post office, including all budget
and hiring decisions. She also had in excess of one year's experience
as Officer in Charge at other Level 18 Post Offices, as well as more
varied experience in the District and Area Offices. She is described
as a brown-skinned Black female.
4 The significance of this abbreviation is not readily apparent.
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0120073868
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073868