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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