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).