01975431
01-05-2000
Michael J. Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Michael J. Harris v. United States Postal Service
01975431
January 5, 2000
Michael J. Harris, )
Complainant, )
) Appeal No. 01975431
v. ) Agency No. 4H335118395
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Michael J. Harris (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of sex (male) and age (date of birth:
September 16, 1947), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant has proven, by a preponderance
of the evidence, that he was subjected to unlawful employment
discrimination on the above-cited bases when he was not offered the
higher level position as Acting Manager at the Carrollwood Branch on
May 25, 1995.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Customer Service (EAS-18 Saved Grade), at the agency's
Carrollwood Branch in Tampa, Florida. Believing he was the victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on July 6, 1995. At the conclusion of the
investigation, complainant, having first requested a hearing, withdrew
his request and asked that a final decision be made.<2> The agency
issued a final decision on June 16, 1997.
The FAD concluded that complainant established a prima facie case of
sex discrimination when he demonstrated that he applied for and was
denied a job for which he was qualified, and that the selectee was an
individual not in his protected group, i.e., a female. However, the
FAD went on to conclude that the agency had articulated a legitimate
non-discriminatory reason for its action and that complainant had not
established that this reason was a pretext for intentional discrimination.
Specifically, the selecting official (hereinafter SO: male, date of
birth partially specified: 1952) stated that complainant was not the best
qualified candidate because complainant's supervisors indicated that his
performance was less than satisfactory. The FAD concluded that there
was no indication that complainant was discriminated against because of
his sex.
In terms of complainant's age discrimination claim, the FAD found that
complainant failed to establish a prima facie case because the selectee
for the position was within his protected age group, as was an individual
selected to serve in the same capacity by SO in June of 1995.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII or ADEA case
is a three-step process. McDonnell-Douglas Corp. v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on sex
is established where complainant has produced sufficient evidence
to show that (1) he is a member of a protected class; (2) he was
qualified for the position; (3) he was not selected for the position;
and (4) he was accorded treatment different from that given to persons
otherwise similarly situated who are not members of his protected group.
See Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998).
To establish a prima facie case of age discrimination, complainant
must show that: (1) he was at least forty years old at the time of the
adverse action; (2) he was qualified for the position; (3) he was not
selected for the position; and (4) he was accorded treatment different
from that given to persons otherwise similarly situated who are not
members of his protected group or are considerably younger than he.
See O'Conner v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);
Carver v. Department of the Interior, EEOC Request No. 05930832 (May
12, 1994).
Complainant may also meet his initial burden by presenting other evidence
which raises an inference of discrimination. Potter v. Goodwill
Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975); Furnco
Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout, complainant retains the burden of proof
to establish discrimination by a preponderance of the evidence. It is
not sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
In the case at hand, the agency correctly determined that complainant
established a prima facie case of sex discrimination. However, in
finding that complainant failed to establish a prima facie case of
age discrimination, the agency erroneously relied on the fact that
the selectee (hereinafter S1: female, date of birth: January 9, 1955)
for the position of Acting Manager on May 25, 1995, as well as an
employee selected to serve in this capacity in June of 1995, was within
complainant's protected group. A prima facie case of age discrimination
can be established regardless of whether the selectee was within the
age group protected by the ADEA. See O'Conner, 517 U.S. 308. Here, S1
was 40 years old at the time of the selection. Given that complainant
was 48 years old at the time of the selection, we find that the selectee
was considerably younger than complainant and that complainant has thus
established a prima facie case of age discrimination.
The agency's articulated legitimate reason for not selecting complainant
is that he was not the best qualified. Although SO's affidavit provides
no further details, a letter from SO to the EEO Investigator, which
was incorporated into the investigative file, indicated that long-term
higher level detail assignments such as the position of Manager,
Customer Services, are given to those supervisors and lower level
managers of Customer Services who are performing above the average level
of performance. SO noted that complainant's supervisors reported that
complainant's performance was less than satisfactory and that it was
for this reason that complainant was not selected.
The record contains no testimony from complainant's supervisors. However,
the record does establish that complainant was disciplined in 1994
for submitting false data in the daily "DPS" reports.<3> It is unclear
whether complainant was demoted, as indicated by a letter dated April 12,
1994, or whether he simply received a letter of warning, as indicated by
a letter dated July 5, 1994. However, these letters are evidence that
complainant's supervisors had reason to find his performance less than
satisfactory and report this to any management official considering
complainant for a higher level assignment. Moreover, SO's signature
is on both the demotion letter and the LOW, indicating that he knew of
complainant's 1994 performance problems.
The agency's burden of articulating a legitimate non-discriminatory
reason is a relatively light one. See EEOC Revised Enforcement Guidance
on Recent Developments in Disparate Treatment Theory, N-915.002 (July 14,
1992). Here, the record contains evidence of complainant's unsatisfactory
performance in 1994, thereby giving credence to the agency's conclusion
that complainant was not selected due to his less than satisfactory
performance. The agency has therefore met its burden of articulating
a non-discriminatory reason for its action.
In order to prevail, complainant must now demonstrate that the reason
given by the agency for his non-selection is pretextual and/or that
the agency was motivated by discriminatory animus in selecting S1 over
complainant. In a non-selection case, pretext may be demonstrated in
a number of ways, including a showing that complainant's qualifications
are observably superior to those of the selectee. See Bauer v. Bailor,
647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998).
In the case at hand, complainant argued that he has more experience and
more education than S1. However, he did not respond to SO's contention
that the reason for his non-selection was the fact that his supervisors
indicated that he had been performing at a less than satisfactory level.
Complainant cannot meet his burden of establishing discriminatory
animus simply by arguing that he would have been the better selection.
We therefore find that complainant has not established that he was
discriminated against as alleged.
Accordingly, the agency's finding of no discrimination on the bases of
sex and age is AFFIRMED.
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 (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). 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:
1/5/00
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:
_____________
Date
________________________
Equal Employment Assistant
1 On 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.
2 The record contains complainant's letter requesting a hearing
and the agency's letter to the EEOC requesting the designation of
an Administrative Judge. While we are unable to find a letter from
complainant withdrawing his request, the FAD indicates that he did so
and complainant does not argue otherwise on appeal.
3 The record does not indicate for what "DPS" stands.