01a03102
07-06-2000
Melvin W. Howard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Melvin W. Howard v. United States Postal Service
01A03102
July 6, 2000
Melvin W. Howard, )
Complainant, )
)
v. ) Appeal No. 01A03102
) Agency Nos. 41630009397; 41630011497
William J. Henderson, ) Hearing Nos. 280-98-4218X;
Postmaster General, ) 280-99-4122X
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely filed an appeal from the agency's final decision in
the above entitled matter.
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).<1>
The issue on appeal is whether complainant was discriminated against
on the basis of his race (African-American) when, on April 15, 1997
and May 12, 1997, he was not selected for two positions of Supervisor,
Vehicle Maintenance (the Positions).
According to the record, there were eight (8) applicants for the Position,
six (6) Caucasians and two (2) African-Americans. Applications were
considered by a Review Committee. Following the review, the chairperson
of the Review Committee recommended for further consideration complainant
and two Caucasian applicants (C-1 and C-2). Two selecting officials
(SOs) made the selections and C-1 and C-2 were chosen. Another agency
official reviewed the selections and approved the choices for the
Positions. The record shows that during the time of the nonselections,
complainant was under investigation for allegedly allowing a subordinate
to perform work on a personal vehicle when he (complainant) was serving
as an acting supervisor.
The AJ found that complainant established a prima facie case of race
discrimination in that he is African-American, applied for and was
qualified for the Positions, and two White applicants were chosen. The AJ
also found that the agency articulated a legitimate, nondiscriminatory
reason for its action, that the selectees were chosen because they
were better qualified for the Positions. The AJ also concluded that
complainant failed to prove pretext. The AJ noted that while the facts
surrounding the investigation, mentioned above, were in dispute, the fact
remained that this investigation into complainant's conduct was ongoing
during the selection process. The AJ also considered and rejected
complainant's argument that favoritism played a role in one selection
and noted that favoritism is not necessarily illegal discrimination.
Pursuant to 64 Fed.Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). A finding that discriminatory intent did not exist is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We find that the AJ
properly concluded that complainant failed to prove, by a preponderance of
the evidence, that he was discriminated against based on his race. While
complainant was admittedly qualified for the Positions, the two selectees
were equally qualified. After carefully reviewing testimony presented
at the hearing, it appears that the investigation, mentioned above, and
not complainant's race, influenced the SOs decisions. There is no record
evidence that the investigation was being conducted for discriminatory
reasons. Accordingly, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-06-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing 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.