0120081894
08-26-2009
Lester A. Gentles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Lester A. Gentles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120081894
Hearing No. 490-2007-00095X
Agency No. 4H-000-0004-06
DECISION
On March 10, 2008, complainant filed an appeal from the agency's February
8, 2008 final order concerning his 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge's finding that complainant failed
to prove that his non-selection was discriminatory, is supported by
substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Manager of Distribution Operations, EAS 21 at the Birmingham, Alabama,
Processing and Distribution Center. On October 23, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (African-American) and age (51) when:
(1) on or about September 18, 2006, he became aware that he was not
selected for the position of Manager In-Plant Support, EAS 21, in
the South Florida Processing and Distribution Center under Vacancy
Announcement Number 128471; and
(2) he was not selected for the same position in the Fort Lauderdale
Processing and Distribution Center under Announcement Number 06104.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on December 11, 2007 and
issued a decision on December 31, 2007.
AJ Decision
The AJ first found the following: there is no dispute that complainant
applied for the positions in question, was qualified for both positions,
was not selected, and a person outside of his protected classes
was selected for each position. Based on the foregoing, complainant
established a prima facie case of discrimination as to both vacancies.
With regards to Vacancy Number 12847, the current Postmaster (P1) of
Birmingham, Alabama, who was Manager of South Florida Processing and
Distribution in July 2006, testified that he, along with the Manager
(M1) In-Plant Support at the South Florida Processing and Distribution
Center, on August 17, 2006, interviewed complainant; (C1) (Asian,
age 25); (C2) (Caucasian, age 51); (C3) (Hispanic, age 54), and (C4)
(Indian, age 65), for the South Florida Processing and Distribution
Manager In-Plant Support position. P1, who was the selecting official,
testified that he considered the applicants' experience, education,
interview skills, and the PS 991 application submitted by the candidates.
P1 testified that he selected C1 because he had experience with automation
and maintenance indicators, which were needed for In-Plant Support.
P1 testified that the difference between complainant and the selectee
was "night and day", and in fact, C1 was head and shoulders above all
considered for this position. P1 testified that C1 interviewed well,
in part because he had specific ideas regarding mail flow and maintenance
operations productivity. P1 testified that C1 had an excellent analysis
of In-Plant operations and what was needed. He stated that complainant,
on the other hand, did not do well on the interview. P1 testified that
complainant's responses to the questions were shallow and not specific.
Complainant had no In-Plant experience at all. P1 testified that C1's
991 application was tailor fit for each question, to the point, and
provided examples. It was the best, in fact, that he had ever seen.
In comparing C1's 991 to complainant's 991, P1 testified that one
of complainant's responses was generic while C1's was specific.
P1 testified that complainant's application was well written, but
C1 used the STARS (situation, task, actions, and results) format.
He also states that C1 had an undergraduate degree and a master's
degree in industrial engineering while complainant's undergraduate
degree was in manufacturing and his master's degree was in business.
Overall, C1 was the best candidate for the position. P1's testimony was
corroborated by M1, who testified that in his interview, C1 demonstrated
he had a great deal of knowledge concerning Postal Service operations.
M1 testified that he was impressed with the fact that C1, with such a
short career with the Postal Service, had the ability to absorb so much.
He noted that C1 was able to evaluate plants in other mail processing
facilities, and he identified problems and how to solve them.
As to the second vacancy, the AJ found that the agency articulated the
following legitimate, non-discriminatory explanation: complainant was
interviewed by two individuals, the Manager, Maintenance Operations,
and the Acting Plant Manager, who was the selecting official (SO).
The selecting official testified that he interviewed the Operation
Support Specialist (OSS) (Caucasian, over age 40), complainant, and
the Manager In-Plant Support for this position. SO noted that the
position required the ability to manage the implementation of national
and area processing and distribution programs and policies; to manage the
reviews and evaluations of local operations; to manage the development
of local requirements for resources; and to provide technical support
for Post Offices. SO testified that complainant did not possess the
necessary qualifications. SO testified that the 991 application for OSS
(the selectee) indicated she had been an Operations Support Specialist
in In-Plant Support department since 1997 working her way from a Level
14 to 16 to 18. OSS had also served in five Level 18 and 20 detail
assignments since 2004. He noted that OSS interviewed well and had
numerous achievement awards during her career. SO testified there was
no doubt that she could go right into the position and perform. In fact,
he testified she is now a plant manager. SO testified that complainant,
on the other hand, did not interview well. His responses were shallow.
In fact, he testified that during his interview complainant complained
about being released after so many years from his prior job with Mattel,
Inc. SO testified that complainant lacked In-Plant experience, and after
the interview, he knew complainant was not fully capable to be Manager
of In-Plant Support. SO's testimony was corroborated by the testimony
of another official who also interviewed complainant for the position.
This official stated that OSS gave an excellent interview, was quick
with all her answers and exhibited an in-depth knowledge of In-Plant
Support. Complainant, on the other hand was hesitant in his responses to
the questions asked. There was no immediacy, and he was not well-rounded.
Complainant's responses were shallow. He testified that he agreed with
SO's selection of OSS and she was clearly the best candidate for the
position.
Addressing pretext, the AJ found that complainant did not point to
anything in the selectees' applications which he felt indicated inferior
performance. The AJ noted that in fact, complainant acknowledged that his
991 application was not better written than the selectee's application
for the first vacancy, and complainant admits he was impressed with the
selectee's Postal Service experience and accomplishments. The AJ found,
after close review and scrutiny of the testimony, questions asked, and
the record as a whole, that there was no evidence that either selection
process was tainted by any unlawful animus. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that he is generally challenging the
promotion and transfer process of the agency, noting that no other
employee with his education, experience, training and job performance
have been rejected for promotion and or transfer at the rate that
he has been rejected. Complainant states the following: "What the
AJ adjudicated was an individual claim related to the treatment I am
alleging. Consideration of my claims individually reduces the critical
mass of a circumstantial case. I am requesting that the complaint be
heard in its original form and combined with the other complaints I have
pending (EEOC #420-2007-00204X, 6Q-000-004-07)."
In response, the agency notes that an AJ (who was assigned to another
of complainant's complaints, No. 6Q-000-0002-07) already ruled on
complainant's Motion to Consolidate the complaint before him with the
instant complaint, denying the Motion on the basis that the complaints
were not related (i.e. different jurisdiction, different responsible
management officials). The agency also noted that the AJ sent yet another
of complainant's complaints (which had been previously dismissed) back
to the agency for investigation. According to the agency, the AJ in
this case reviewed the other AJ's ruling on the Motion to Consolidate
when complainant again objected to proceeding without consolidating the
complaints, and the AJ found complainant's argument not persuasive.
Finally, the agency contends that the AJ's findings in this case are
supported by substantial evidence in the record, and asks the Commission
to affirm the final order.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we address complainant's request to consolidate the instant
case with another complaint that he filed. Although the record does not
contain a copy of the other AJ's Order, denying the request to consolidate
the instant case with another case, we note that complainant has not
disputed that the other complaint involved a different jurisdiction and
different responsible management officials. Here, we discern no abuse
of discretion on the part of the Administrative Judge in this case in
affirming the other AJ's refusal to consolidate the instant complaint with
another of complainant's complaints. Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-
MD-110) at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department
of the Navy, EEOC Request No. 05980746 (September 19, 2000).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainant could establish a prima facie case of discrimination
on the alleged bases, the agency has set out detailed legitimate,
nondiscriminatory explanations for each of its actions. Although
complainant argues that given the mathematical odds, he has been rejected
for too many positions considering the excellence of his credentials,
the Commission finds that the AJ's conclusion that complainant has not
established discrimination as to these particular vacancies, is supported
by substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
_____08/26/09_____________
Date
1 We note that complainant actually applied twice for the position of
Manager of In-Plant Support at the South Florida P & DC, first on March
2, 2006 under Vacancy #06015 and the second time on July 20, 2006,
under Vacancy #12847. The first time, complainant was interviewed,
but ultimately no selection was made. The second time, after five
candidates were interviewed, including complainant, another individual
was selected.
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0120081894
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081894