0120082735
03-31-2009
Linda Adams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Adams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082735
Hearing No. 471-2008-00005X
Agency No. 1J-489-0005-07
DECISION
On June 3, 2008, complainant filed an appeal from the agency's May 15,
2008 final order concerning her 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. 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.
BACKGROUND
During the relevant time, complainant worked as a Supervisor, Distribution
Operations, Tour 3, EAS-17 at the Processing and Distribution Center
in Saginaw, Michigan. In February 2007, a vacancy for the position of
Manager, Distribution Operations EAS 19, was announced under No. 14102.
Complainant, and four other employees, applied for the position.
A review board that considered the applications recommended three
of the individuals, including complainant, to be interviewed by the
Selecting Official (hereinafter "SO").1 Complainant and the selectee
were interviewed by the SO and two others. The selectee was considered
the better candidate and chosen for the vacancy.
Believing that her non-selection was discriminatory, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns were
unsuccessful. On June 15, 2007, complainant filed a formal complaint
based on race, color, sex, and retaliation.
The agency framed the claims as follows:
(1) on February 26, 2007, complainant overheard the Plant Manger say
he had moved another employee to Tour III to prevent complainant from
getting the Tour III MDO position; and,
(2) complainant alleged discrimination based on retaliation when she
received a letter dated May 21, 2007 notifying her of non-selection
for the position of Manager, Distribution Operations, EAS 19, vacancy
announcement number 14102.
The agency accepted for investigation claim (2). However, the agency
dismissed claim (1). On the grounds of untimely EEO Counselor contact.
Specifically, the agency noted that the employee at issue was assigned to
Tour III in January 2006, and in April 2006 he was approved permanently
for the Tour III MDO position. The agency found that complainant
waited approximately a year after the alleged event before contacting
the EEO office. Further, the agency found that complainant did not
claim that he was unaware of the time limitation, nor had she provided
any other credible justification for her untimely contact.2
At the conclusion of the investigation of claim (2), complainant was
provided with a copy of the report of investigation and notice of
her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over the complainant's
objections, the AJ assigned to the case granted the agency's Motion
for Summary Judgment. On May 5, 2008, the AJ issued a decision without
a hearing. The AJ concluded that complainant failed to prove that she
was subjected to discrimination as alleged.
The AJ found that the SO provided a legitimate, non-discriminatory reason
for complainant's non-selection. The SO considered the selectee to be the
better candidate for several reasons. First, while both the selectee and
the complainant held supervisory positions, the selectee had additional
years of service with the agency. Second, the selectee worked well with
his peers and the union leadership. Third, the SO determined that the
selectee accepted the opportunity to perform the MDO position on Tour
1 as a detail, after complainant rejected such an offer. During his
detail, the selectee created a new process to address performance, he
held his supervisors accountable by creating a daily log, and his sick
leave reduction plan was later adopted by all three tours.
On the other hand, complainant was not perceived as a team player.
Complainant declined an opportunity to do a detail in the MDO position in
2006, and when she later accepted such a detail, she did not implement
any new ideas or improvements. Consequently, the SO found the selectee
to be the better individual for the MDO vacancy.
When the burden of persuasion shifted to the complainant, the AJ found the
record contained no evidence of pretext. Specifically, the AJ noted that
in her affidavit complainant made many assertions that were unsupported
by evidence. For example, complainant claimed that the agency failed to
follow the appropriate promotion procedures, yet she did not specify which
procedures were not observed. According to the AJ, because there was no
direct or other circumstantial evidence of discrimination, complainant
was required to show that she is observably superior to the selectee.
The AJ concluded that the record did not support such a finding.
The agency subsequently issued a final order adopting the AJ's finding
of no discrimination. Complainant filed the instant appeal.3
CONTENTIONS ON APPEAL
On appeal, complainant through her representative, argues that she
established a prima facie case and that the agency failed to articulate a
non-discriminatory reason for their actions. Additionally, complainant
attacks the SO's reference to the selectee's ability to get along with
the union. She reiterates that her education and training is equal
to that of the selectee. Finally, complainant contends that the SO's
statements, that she is not a team player and does not get along with
co-workers, are unsupported by evidence.
In response, the agency reiterates its belief that the AJ properly granted
its motion for summary judgment and found no discrimination. With respect
to complainant's arguments on appeal, the agency contends that complainant
again fails to present any evidence to dispute the AJ's findings.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that the AJ properly granted the agency's motion
and issued a decision without a hearing. We agree that there is no
genuine issue of material fact.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
As noted above, the SO presented legitimate, non-discriminatory reasons
for choosing the selectee for the vacancy. In his affidavit, the SO
explained that the selectee was experienced with Tour I, demonstrated
an ability to work well with others, interviewed well, accepted a detail
opportunity, and created new processes while on detail.
Complainant has not met her burden, of establishing that the
agency's reasons were pretext to mask unlawful discriminatory animus.
For example, when asked why she believes the non-selection was due to
her race, complainant simply stated that she was "fully qualified", had
performed the duties, had a "decent" attendance record, and that she was
"better qualified" than the selectee. The record does not establish that
complainant was observably superior. We find that complainant has merely
presented conclusory statements regarding her claim of discrimination.
These assertions are not supported by evidence. The Commission agrees
that complainant has failed to prove that her non-selection was unlawful
discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding of no discrimination.
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
March 31, 2009
__________________
Date
1 One of three to be interviewed withdrew the application from
consideration.
2 Complainant was properly advised that she did not have a right to appeal
the dismissal at that time. If she disagreed with the agency's decision,
complainant could raise her objections with the EEOC Administrative Judge
(AJ) in the event that she requested a hearing.
3 Because complainant did not raise the dismissal of claim (1) on appeal,
we shall not address the matter in our decision.
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0120082735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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