01973414
03-03-1999
Henry H. Coleman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Henry H. Coleman, )
Appellant, )
)
v. ) Appeal No. 01973414
) Agency No. 4-H-310-1043-96
William J. Henderson, ) Hearing No. 110-96-8275X
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American), sex
(male), and retaliation (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges he was discriminated against on January 13, 1994,
when he was not selected for the Officer in Charge (OIC) position at
the Montrose, Georgia, Post Office (facility). The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a PS-6 Carrier Technician at the agency's Macon, Georgia, Post Office.
Appellant stated that although he applied and was qualified for the
OIC position at the facility, he was informed that a White female had
been selected. Believing he was a victim of discrimination, appellant
sought EEO counseling and, subsequently, filed a formal complaint on
December 19, 1995.<1> At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD), finding no discrimination.
Employing the principles set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981), the AJ initially found that appellant established
a prima facie case of race discrimination, as statistics showing that a
small percent of Postmaster positions were filled by African-American
males suggests the agency is reluctant to hire African-Americans for
Postmaster and OIC positions. The AJ further found that while appellant
met his burden in establishing a prima facie case of discrimination based
on retaliation due to his pending EEO complaints, he failed to establish
a prima facie case of gender discrimination based on statistics showing
the ratio of female to male Postmasters.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions through the testimony of the
Selecting Official (SO), who stated that race, gender and retaliation
were not a factor in failing to select appellant for the OIC position,
and that the selectee was chosen because she was the designated Postmaster
replacement for the MPO and had thus been trained to assume OIC duties.
The AJ further found that appellant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and retaliation. The AJ stated that while the statistics
cited by appellant raise questions as to the SO's true motivation,
a legal conclusion cannot be made based on the statistics as there is
information about race, gender or qualifications of the applicants for
the OIC position. Further, the AJ credited the SO's testimony that the
selectee was the obvious choice for the OIC position, and noted that the
appellant neither demonstrated that the SO's motivation was pretextual,
nor had he rebutted the testimony that the SO had previously selected
an African-American and individuals who had filed EEO complaints for
OIC positions. The agency's FAD adopted the AJ's RD. Appellant makes no
new arguments on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that while
appellant established a prima facie case of race and retaliation
discrimination, the agency articulated legitimate, non-discriminatory
reasons for promoting the selectee to the OIC position. The Commission
notes, however, that appellant has established a prima facie case
of sex discrimination with regard to his nonselection in that he is
a member of a protected group on account of his sex, and he applied
and was qualified for the subject position, yet was not selected in
favor of a White female candidate. See Keyes v. Secretary of the Navy,
853 F.2d 1016, 1023 (1st Cir. 1988). However, we agree with the AJ's
finding that appellant failed to present evidence that it was more likely
than not that any of the agency's actions were a pretext for race, sex,
or retaliation discrimination. Hochstadt v. Worchester Foundation for
Experimental Biology, Inc., 425 F. Supp 318 (D. Mass. 1976), aff'd, 545
F.2d 222 (1st Cir. 1976). We thus discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment of
the record and the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant also filed an EEO complaint with the agency on October 23,
1995, alleging that he was discriminated against on the bases of race,
sex, and reprisal when he was not selected for the Postmaster position
at the Parrott, Georgia Post Office. However, appellant withdrew that
complaint prior to the hearing and we therefore need not address those
allegations herein.