Gloria Glover, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.

Equal Employment Opportunity CommissionApr 20, 2001
01986188 (E.E.O.C. Apr. 20, 2001)

01986188

04-20-2001

Gloria Glover, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.


Gloria Glover v. United States Postal Service

01986188

April 20, 2001

.

Gloria Glover,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Mid-Atlantic Area),

Agency.

Appeal No. 01986188

Agency No. 4D-230-0089-97

Hearing No. 120-98-9074X

DECISION

Complainant timely initiated an appeal from the agency's final agency

decision (FAD), concerning her 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. Complainant alleges she was discriminated against

on the bases of sex (female) and age (47), when she was not selected for

the position of General Supervisor, EAS-17, Computerized Markup Unit,

at one of the agency's Richmond, Virginia, facilities.

BACKGROUND

The record reveals that complainant, a supervisor in the Computerized

Forwarding Systems (CFS) unit at the agency's Richmond, Virginia,

facility, in which she was seeking the position of General Supervisor,

EAS-17, filed a formal EEO complaint with the agency on March 11, 1997,

alleging that the agency had discriminated against her as referenced

above. At the conclusion of the investigation, complainant was provided

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

decision finding no discrimination.

Complainant had been a supervisor in the CFS unit since November 1990.

From September 1993 until August 1994 she also served as Main Office

Collection Supervisor. From December 1995

until December 7, 1996, complainant was detailed to the position of

general supervisor of the Computerized Markup Unit (a part of CFS),

the position at issue in this complaint.

On July 9, 1996, USPS Vacancy Announcement No. 01480 was issued for

the position of General Supervisor, Computerized Markup Unit, EAS-17.

The Announcement stated that the incumbent was to supervise a large

group of employees engaged in computerized mail mark-up at a very large

postal installation, and listed six requirements for the position:

(1) knowledge of undeliverable-as-addressed mail processing procedures,

policies and regulations; (2) ability to manage a mail mark-up program;

(3) knowledge of computer terminals, including data entry, information

output, and the use of application software programs; (4) ability to

extract computer-generated information and prepare reports; (5) ability

to supervise a technical staff; and (6) ability to communicate orally

sufficiently to resolve customer complaints, train and advise subordinate

employees and maintain contact with equipment maintenance contractors.

The announcement also listed twelve specific duties and responsibilities

of the position.

Five applicants, including complainant, were on the best-qualified list

forwarded to the Selecting Official (SO). The SO interviewed all of the

applicants on the best-qualified list. The selectee was male (born January

1, 1955). The SO summarized his reasons for recommending the selectee in

a November 7, 1996, memorandum to the postmaster. The selectee had been

in management almost two years and had served in an acting management

role for two years before being promoted. The selectee had ten years

postal experience and a B.S. degree from the University of Oklahoma.

In 1988, the selectee received the Dallas Teacher of the Year Award

and was a Dean's Honor Roll student. In the SO's view, the selectee's

specialized computer skills far exceeded the job requirements. The SO

found the selectee to be very articulate and and that he presented

himself as a professional manager.

With regard to complainant, the SO had supervised her for four years.

The SO found that, complainant, as a manager, acting in the position

at issue, operated in a reactive manner as opposed to being proactive.

In the SO's view, complainant did not assume a strong leadership role and

had been plagued with unnecessary grievances and other labor problems.

The SO further noted that some customer complaints were created as a

result of some areas not getting the proper attention. The SO concluded

that complainant needed direct supervision and guidance.

In his testimony at the hearing, the SO indicated that the selectee was

very proactive and aggressive during the interview, including setting

forth changes that he would make to the CFS unit, many of which were

changes that the SO had previously requested complainant make. The SO

stated that the selectee had two years of experience as a supervisor of

the CFS unit in Dallas, Texas, and that his supervisors gave him very

good recommendations. With regard to complainant, the SO testified that

she was not aggressive enough in administering discipline and controlling

her unit. In addition, he stated that there were problems in the CFS

unit, under complainant's supervision, specifically with the delivery

of the MUM mail, miszipped, and unzipped mail.

The AJ found that complainant established a prima facie case of

discrimination on the basis of sex.

However, he found that complainant did not establish a prima facie case

of discrimination on the basis of age, finding that the SO credibly

testified that he did not know the age of the selectee. Furthermore,

the AJ indicated that complainant did not introduce any evidence to

establish that the SO knew the selectee's age, and that the selectee's

application did not state the selectee's age.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the AJ found

that the SO's testimony, in justifying the selection of the selectee,

sufficiently articulated legitimate, nondiscriminatory reasons for

his selection.

The AJ further concluded that complainant failed to establish that

the reasons provided by the agency were a pretext for discrimination.

In reaching this conclusion, the AJ found that the SO credibly testified

that he did not state that he wanted a man for the job, and interpreted

the SO's language, which had been attacked by complainant, to mean that

the SO wanted a person who could be aggressive with regard to disciplining

the employees, rather than that he wanted a man who could, e.g., �put

foot to butt.� Furthermore, the AJ concluded that complainant did not

rebut the SO's explanation as to why he selected the selectee. The AJ

additionally noted that while a former supervisor testified favorably

about complainant, the supervisor had not supervised complainant for more

than four years and did not specifically refute the SO's statement that

complainant was not an aggressive manager in dealing with her subordinates

and in issuing discipline. Finally, the AJ concluded that complainant

did not rebut the SO's testimony with regard to her problems in dealing

with the MUM mail

The agency's FAD accepted the AJ's decision. On appeal, complainant

contends that the SO was disingenuous in providing his reasons for

the nonselection of complainant. Complainant objects to the vulgar

language used by the SO (e.g., �put foot to butt�) and argues that the

SO's language indicates that he has a perception that women are weak

and fragile. Complainant further argues that the SO stated that he

�need[ed] a man� and �a man who would put foot in the clerks' behind.�

The complainant thus suggests that the work environment was polluted

with discrimination against complainant and other female workers.

In complainant's view, the totality of the circumstances indicate that

the work environment was unreasonably abusive and offensive, adversely

affecting complainant. Complainant also argues the SO placed undue

emphasis on the selectee's education and teacher's experience, when

there was no degree or teaching requirement for the position. It does

not appear that complainant contests the AJ's finding that she was

discriminated against because of her age. The agency did not reply.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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).

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979)(requiring a showing that age was a determinative factor, in

the sense that "but for" age, complainant would not have been subject to

the adverse action at issue). A complainant must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited reason was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). Next, the agency must articulate a legitimate,

nondiscriminatory reason for its action(s). Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered

the reason for its action, the burden returns to the complainant to

demonstrate, by a preponderance of the evidence, that the agency's reason

was pretextual, that is, it was not the true reason or the action was

influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

Complainant may establish a prima facie case of discrimination in the

nonselection context by showing that: (1) she is a member of a protected

class; (2) she was qualified for the position; (3) he was not selected

for the position; and (4) she was accorded treatment different from that

given to persons otherwise similarly situated who are not members of

her protected group or, in the case of age, who are considerably younger

than she. Williams v. Department of Education, EEOC Request No. 05970561

(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin

Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). Complainant

may also set forth evidence of acts from which, if otherwise unexplained,

an inference of discrimination can be drawn. Furnco, 438 U.S. at 576.

The AJ found that complainant established a prima facie case of

discrimination on the basis of sex, but not age. Nevertheless, the

established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the agency's

actions were motivated by discrimination. U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900159 (June 28, 1990).

The agency has articulated a legitimate, nondiscriminatory reason for its

failure to promote complainant to the position of General Supervisor,

EAS-17, in the Computerized Markup Unit, i.e., the selectee was better

qualified. We must therefore consider whether complainant has shown

pretext.

The Commission notes that in nonselection cases, pretext may be found

where the complainant's qualifications are demonstrably superior to the

selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

However, an employer has the discretion to choose among equally

qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061

(6th Cir. 1981). Additionally, an employer has greater discretion when

filling management level or specialized positions. Wrenn v. Gould,

808 F.2d 493, 502 (6th Cir. 1987).

We find that substantial evidence supports the AJ's finding that the

agency did not discriminate against complainant on the bases of sex

or age. Most importantly, complainant does not argue, on appeal,

that she was at least as well or better qualified than the selectee.

The SO gave a detailed justification why he chose the selectee, and

not complainant. Complainant argues that the SO improperly gave weight

to the selectee's background as a teacher and the selectee's education.

Nevertheless, one of the job duties of the incumbent of the position was

to provide training. As such, the Commission does not believe that the

selectee's background as a teacher was irrelevant. Even if education

arguendo was irrelevant to the position in issue, there is no indication

that compelling weight was given by the SO to this factor.

Complainant's chief argument on appeal focuses on the SO's use of vulgar

language. The AJ found that the SO's language was not sexually based

(e.g., �put foot to butt�). AJ Decision at 22. The AJ additionally found

that there were two statements made on one occasion only. Id. at 11.

Complainant has not proven otherwise. The AJ also found the SO's testimony

credible, when the SO denied stating that he wanted a male for the job.

Id. at 12, 22. The Commission notes that the credibility determinations of

the AJ are entitled to deference due to the AJ's first-hand knowledge,

through personal observations, of the demeanor and conduct of the

witnesses at the hearing. Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996); Willis v. Department of the

Treasury, EEOC Request No. 05900589 (July 26, 1990).<1>

CONCLUSION

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present sufficient evidence that the agency's action was

motivated by discriminatory animus toward complainant's sex or age.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

April 20, 2001

Date

1 It appears that complainant, on appeal, is making a hostile work

environment claim based on sex (female). Complainant may file a separate

complaint involving this allegation. Complainant is advised that if she

wishes to pursue, through the EEO process, the hostile work environment

claim, she shall initiate contact with an EEO counselor within fifteen

days after she receives this decision. The Commission advises the

agency that if complainant seeks EEO counseling regarding the new

allegation within the above fifteen-day period, the date complainant

made the hostile environment allegation on appeal, September 16, 1998,

shall be deemed to be the date of the initial EEO counselor contact,

unless she previously contacted a counselor regarding these matters,

in which case the earlier date would serve as the EEO counselor contact

date. Cf. Qatsha v. Department of Navy, EEOC Request No. 05970201

(January 16, 1998).