01996942
10-12-2001
Joseph P. Joseph, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Joseph P. Joseph v. United States Postal Service
01996942
October 12, 2001
.
Joseph P. Joseph,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01996942
Agency No. 1-G-771-0118-97
Hearing No. 330-98-8227X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. In his complaint, complainant alleges he was
discriminated against on the bases of his race (Asian) and national
origin (Indian) when, on July 3, 1997, the agency did not grant him an
interview for an open Operations Support Specialist EAS-16 position.
For the following reasons, the Commission AFFIRMS the agency's final
decision adopting the Administrative Judge's finding of no discrimination.
BACKGROUND
The record reveals that complainant, an Operations Support Specialist
EAS-14 at the agency's Barbara Jordan Post Office facility in Houston,
Texas, filed a formal complaint of discrimination with the agency on
October 20, 1997, alleging that the agency had discriminated against him
as referenced above. At the conclusion of the agency's investigation
into the complaint, complainant received a copy of the investigative
report, and subsequently requested a hearing on the matter before an
EEOC Administrative Judge (AJ). Following the hearing, the AJ issued
a decision finding no discrimination.
In her decision, the AJ concluded that complainant had established a
prima facie case of racial and national origin discrimination by showing
that: he is an Asian of Indian descent; he applied for the position
and was eligible for selection; he was not given an interview for the
position; and persons not Asian of Indian descent were given interviews.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency presented evidence
that a panel of three individuals reviewed the applications submitted,
selected the ten best applicants for interviews, and, based upon their
review, complainant's application was not among the ten best.
The AJ found that the process of deciding which applicants would
be interviewed involved the members of the review panel preparing a
matrix of the applications, based on the applicants' responses in the
knowledge, skills, and abilities section of the application. The criteria
to be addressed in this section were taken from the position vacancy
announcement. In support of her decision finding no discrimination, she
noted that while the process of determining which applicants were to be
interviewed had been largely subjective, the use of subjective criteria
is not per se impermissible�rather, the use of such criteria is subject
to close scrutiny. In examining this process, the AJ found that, of
the thirty-five applicants for the position, less than 5% were of Asian
descent, and as a result it would not be statistically significant that
no Asians were included in the group interviewed. She then noted that
two of the panel members had on an earlier occasion selected complainant
to interview for a similar position, and that this �does not suggest that
they would be biased against the complainant's race or national origin.�
The AJ concluded that the panel members' explanations for their ratings
of the applications were �at best vague� but that, other than one panel
member knowing a large percentage of the persons who were interviewed,
there had been no showing that any impermissible factors were used by
the committee in ranking the applications. She noted that one of the
panel members had ranked complainant above average on his application,
but his overall score was not high enough to rank him in the top ten.
The AJ further concluded that the panel members each used their own
judgment to decide which applications were the best, and that the
evidence presented was insufficient to find that there was any intentional
discrimination against complainant based on his race and national origin.
On July 30, 1999, the agency issued its final decision agreeing with the
Administrative Judge and finding no discrimination. This appeal followed.
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 the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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 consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Complainant can establish a prima
facie case of race and national origin discrimination by showing: (1)
he is a member of a group protected under Title VII; (2) the agency
had a position vacancy for which he applied and was qualified; (3)
he was not selected; and (4) the agency chose a candidate outside of
his protected group. El-Sayed v. United States Postal Service, EEOC
Request No. 05910031 (March 15, 1991). Next, the agency must articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then complainant must prove, by a preponderance of the
evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
Complainant argues on appeal that the reasons provided by the review
panel members for their decision to not interview him are pretextual, as
others of different races and national origins who had applications which
were incomplete or did not have well-defined responses to the questions
posed were nonetheless granted interviews. However, as noted above,
the AJ based her finding of no discrimination on the evidence presented
that the decision to not interview complainant had been based upon
the merits of his application in comparison to the other applicants,
and not on any impermissible factors. After careful review of the
record on appeal, including the transcript from the hearing and the AJ's
decision, we conclude that the complainant failed to meet his burden of
proving by a preponderance of the evidence that the agency's articulated
legitimate, nondiscriminatory reason for not interviewing complainant
was a mere pretext for discrimination. See Burdine, 450 U.S. at 256.
We hold that the AJ's finding of no discrimination was based upon
substantial evidence in the record, and thus shall be upheld on appeal.
See 29 C.F.R. � 1614.405(a). Accordingly, we AFFIRM the agency's final
decision adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 12, 2001
Date