Lloyd W. Rowe, Complainant,v.William J. Henderson, Postmaster General, U.S. Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01981741 (E.E.O.C. Mar. 22, 2000)

01981741

03-22-2000

Lloyd W. Rowe, Complainant, v. William J. Henderson, Postmaster General, U.S. Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.


Lloyd W. Rowe v. U.S. Postal Service

01981741

March 22, 2000

Lloyd W. Rowe, )

Complainant, )

)

v. )

) Appeal No. 01981741

William J. Henderson, ) Agency Nos. 4D-250-0142-97

Postmaster General, )

U.S. Postal Service, )

(Allegheny/Mid-Atlantic Areas), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his complaints of unlawful employment discrimination on the

basis of sex (Male) in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges that

he was discriminated against when he was not selected by the agency for a

position for which he had applied. The appeal is accepted in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405). For the following reasons, the agency's decision is AFFIRMED.

BACKGROUND

The record reveals that during the relevant time period, complainant

was employed by the agency as a City Letter Carrier at the Abington,

Virginia Post Office. In 1997, complainant submitted an application for a

Postal Systems Coordinator, EAS 15, position located in Bristol, Virginia.

The agency found complainant to be qualified for the position but selected

another applicant for the position.

Believing himself to be a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a formal complaint charging

discrimination in his nonselection. The agency accepted the complaint

for investigation. At the conclusion of the investigation, complainant

was furnished with a copy of the investigative report. Complainant did

not exercise his right to a hearing. Accordingly, the agency issued a

FAD on the basis of the investigative record.

The FAD concluded that complainant had not been discriminated against,

finding that complainant had failed to establish a prima facie case of

sex-based discrimination; that the agency had articulated a legitimate,

nondiscriminatory reason for its selection; and that complainant

had failed to prove that reason to be a pretext designed to conceal

discriminatory animus.

From the FAD complainant brings the instant appeal.

ANALYSIS AND FINDINGS

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); and St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission finds that

complainant failed to prove that the agency's articulated reason for

its actions was a pretext for discrimination.<2>

According to the agency, it chose the selectee for the position rather

than complainant because "in-house" financial experience was an important

qualification for the position and the selectee had in excess of three

years experience working in agency financial operations while complainant

had none. Complainant contends that his qualifications were superior to

those of the selectee in that he had significantly more formal education

than did the selectee.

We find that although complainant was fully qualified for the position,

he failed to establish that his qualifications were so plainly superior

to those of the selectee to permit a finding of discriminatory animus.

Vanek v. Department of the Treasury, EEOC Request No. 05940906 (Jan. 16,

1997); Patterson v. Department of the Treasury, EEOC Request No. 05950156

(May 9, 1996). The agency's principal reason for preferring the

selectee to complainant was that the selectee had experience as an

agency employee with financial operations, while complainant did not.

This is a legitimate nondiscriminatory reason for the agency's actions.

See Pegues v. Department of Veterans Affairs, EEOC Request No. 05960369

(September 3, 1998)(agency may legitimately afford hiring preference

to current employees.) Complainant has adduced no evidence that the

agency's articulated reason for its selection was a pretext designed to

conceal discriminatory animus.

CONCLUSION

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 (M1199)

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 (3O) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (2O) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

3-22-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

3-22-00

Date

__________________________

Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary where, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reason for its actions

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).