Malcolm E. Scoon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 25, 2009
0120080619 (E.E.O.C. Jun. 25, 2009)

0120080619

06-25-2009

Malcolm E. Scoon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Malcolm E. Scoon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120080619

Hearing No. 520200600104X

Agency No. 4A110016605

DECISION

On November 19, 2007, complainant filed an appeal from the agency's

October 17, 2007 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., Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

an applicant for employment at the agency's Triboro District facility

in New York City. On October 14, 2005, complainant filed an EEO

complaint alleging that he was discriminated against on the bases of

race (African-American), color (light-skinned black), disability (right

shoulder), and age (47 at the relevant time) when: (1) on August 1, 2005,

the agency did not select him for the position of City Carrier; and (2)

on August 24, 2005, management denied his request for reconsideration

of his non-selection.

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. The AJ found that, after viewing the evidence in the

light most favorable to complainant, that a decision without a hearing

was appropriate because there were no genuine issues of material fact

in dispute. The AJ, therefore, issued a decision without a hearing on

September 5, 2007, finding no discrimination. Specifically, the AJ found

that assuming, arguendo, complainant established a prima facie case of

race, color, disability and age discrimination, the agency nonetheless

articulated legitimate, non-discriminatory reasons for its actions

that complainant failed to show were pretextual. The record reflects

that complainant was one of 498 applicants for the position at issue,

for which 72 applicants were selected. (Report of Investigation, 14).

The record also reflects that, based upon his score on the Postal Service

examination and his veteran's preference, complainant was ranked first

among the applicants and was interviewed for a position on July 18,

2005. (Agency's Motion for a Decision without a Hearing, Exhibit 1).

Complainant's application for the position at issue, however, reflected

that he had been convicted of felony manslaughter for which he had been

incarcerated for four years, and that this incarceration occurred less

than five years prior to the time of his application. (R.O.I., Exhibit

1, 13). Additionally, with respect to his prior work history, his

application noted numerous periods of unemployment, and did not include

any information regarding work done while incarcerated. Id. The record

shows that agency policy provides that selecting officials must consider

an applicant's prior employment history and criminal conviction history,

but that each applicant must be individually evaluated for suitability.

(R.O.I., Exhibit 20). Here, management determined that, based upon

the nature of the crime for which complainant had been convicted, his

recent incarceration, and his numerous periods of unemployment, he was

not suitable for a City Carrier position. (R.O.I., Affidavit C; E).

Accordingly, by letter dated August 1, 2005, complainant was informed

that his application for employment was disqualified as there were

"more suitable applicants available." The letter also indicated that

complainant could request reconsideration of the agency's decision within

fifteen days. (R.O.I., Exhibit 2). The record shows that complainant

subsequently requested reconsideration, but by letter dated August 24,

2005, reconsideration was denied. (R.O.I., Exhibit 3; 4).

The AJ further found that complainant failed to establish a prima facie

case of discrimination under a disparate impact theory. Specifically,

despite the extensive discovery in the instant case, complainant's

statistical evidence was not sufficient to show that the agency's policy

of considering an applicant's history of criminal convictions negatively

impacted African-American applicants more than applicants of other races.

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.

On appeal, complainant contends that the AJ displayed bias toward

the agency, and erred in issuing a decision without a hearing because

there were pending discovery issues that were not resolved prior to the

issuance of the AJ's decision, and because there are genuine issues of

material fact which require a hearing. Complainant also contends that the

record contains inconsistent statements from management officials, and

that he was not given sufficient time to respond to the agency's Motion

for a Decision without a Hearing. Finally, complainant reiterates his

contention that he was subjected to unlawful discrimination, and that

the agency's policy of considering criminal convictions in its hiring

process disparately impacts African-American applicants.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). 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. If a case can only be resolved by weighing conflicting

evidence, it is not appropriate for an AJ to issue a decision without

a hearing. In the context of an administrative proceeding, an AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

After a careful review of the record, the Commission finds that a decision

without a hearing was appropriate, because no genuine issue of material

fact exists. We also find that, despite complainant's contention,

the record does not reveal that the AJ displayed any bias toward the

agency. Consequently, we turn to whether the AJ properly concluded that

complainant failed to show that he was subjected to unlawful race, color,

age, or disability discrimination.

Disparate Treatment

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, 143 (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).

Here, we concur with the AJ's finding that the agency articulated

legitimate, non-discriminatory reasons for its actions. Specifically,

complainant was found not suitable based on his record of incarceration

and numerous periods of unemployment. We concur with the AJ's finding

that complainant failed to proffer any evidence from which a reasonable

fact-finder could conclude that the agency's actions were motivated

by discriminatory animus toward his race, color, age, or disability,

or that the agency's articulated reasons for its actions were a pretext

for unlawful discrimination.

Disparate Impact

In order to establish a prima facie case of discrimination under a

disparate impact analysis, complainant must show that the challenged

practice or policy had a disproportionate impact on members of her

protected class. Specifically, complainant must: (1) identify the

specific practice or policy challenged; (2) show a statistical disparity;

and (3) show that the disparity is linked to the challenged policy or

practice. Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). The

burden is on the complainant to show that "the facially neutral standard

in question affects those individuals [within the protected group]

in a significantly discriminatory pattern." Dothard v. Rawlinson,

433 U.S. 321, 329 (1977); see also Gaines v. Department of the Navy,

EEOC Petition No. 03990119 (August 31, 2000).

If complainant establishes a prima facie case of disparate impact,

the burden shifts to the agency to provide a business justification for

the challenged action. See Section 105 of the Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). Pursuant to the

Civil Rights Act of 1991, once a prima facie case is established,

the agency has the burden of proving that the challenged practice

is job-related and consistent with business necessity. If the agency

satisfies this burden, complainant may nevertheless prevail if he provides

an alternative employment practice that would accomplish the same goal

with a less adverse impact on his protected class.

In the instant case, we concur with the AJ's finding that complainant

failed to establish a prima facie case of disparate impact discrimination

because he failed to show that there was any statistical disparity linked

to the challenged policy or practice. Complainant's statistical evidence

was not sufficient to show that the agency's policy of considering

an applicant's history of criminal convictions negatively impacted

African-American applicants more than applicants of other races.

Consequently, we concur with the AJ's finding that complainant failed

to establish a prima facie case of disparate impact.

CONCLUSION

We find that viewing the record evidence in the light most favorable to

complainant, there are no genuine issues of material fact. We further

find that the AJ appropriately issued a decision without a hearing,

finding no discrimination. Therefore, we discern no basis to disturb

the AJ's decision and the agency's final order is AFFIRMED.

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

June 25, 2009

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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