01A13685
08-21-2002
Michael L. Hardin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael L. Hardin v. United States Postal Service
01A13685
August 21, 2002
.
Michael L. Hardin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13685
Agency No. 4C-430-0070-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. 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. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Postmaster, EAS-11, at the Derby Ohio Post Office, Derby,
Ohio facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on September 11, 2000, alleging that he was
discriminated against on the bases of race (Caucasian) and age (51) when:
(1) on or about May 19, 2000, complainant was informed that he was not
being given an Officer in Charge (OIC) assignment; and
on various dates between March 22, 1995 and January 30, 2000, complainant
was denied opportunities for higher level assignments or not selected
for higher level jobs.
Issue (2) of this complaint was dismissed by the agency, for untimely
contact of an EEO counselor. Upon review, we find that the agency
properly dismissed issue (2) for untimely EEO Counselor contact. The
record discloses that the latest alleged discriminatory incident occurred
in January 30, 2000; however, complainant failed to contact an EEO
Counselor until May 19, 2000, which is beyond the applicable limitations
period. On appeal, no persuasive arguments or evidence have been presented
to warrant an extension of the time limit for initiating EEO contact.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race, age and/or sex discrimination based on disparate
treatment. The agency also concluded that management articulated a
legitimate, nondiscriminatory reason for its action. Specifically,
the agency found that the criteria used in selecting OIC, were the
following: past experience; current grade level; cost of mileage to
and from the OIC position; and availability. The agency noted that
there were no specialized eligibility requirements for these positions.
The agency also found that complainant was a level EAS-11 Postmaster,
which was three Postmaster levels away from the available position.
The agency further found that the selectee was a level EAS-16, Customer
Services Supervisor, and had OIC experience at the Orient office (EAS-18),
in addition to city delivery, rural and clerical supervisor experience.
The agency noted that the other selectee had past experience in the
Orient office, no mileage costs, had experience at a level EAS-20, and
EAS-18 with a current level of EAS-15. The agency concluded that the
record supports that management considered past experience, current grade
level, cost of mileage to and from the OIC position, and availability,
and that nothing in the record shows that management was motivated by
discriminatory animus.
On appeal, complainant contends that on the basis of mileage alone, he
was a better choice than the selectees. Specifically, complainant contends
that he would need to drive less than the selectees to work in the Orient
office. Complainant also contends that the Columbus District OIC posting
dated May 8, 2001, under the heading �Eligibility Requirements�, states
that the position is open to all within six EAS grade levels or three
Postmaster levels of the level of the assignment. Complainant contends
that the position available was level 18, and the positions below 18 are:
Level 11, Level 13, and Level 15. Complainant notes that he is level 11,
and asserts that he is less than three levels away from the position.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDING
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s). Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason was pretextual--that is, it was not the true reason,
or the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253. However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
Even assuming arguendo that complainant established a prima facie
case of discrimination on the bases of age and/or race, we conclude
that the agency articulated a legitimate, nondiscriminatory reason for
its action. Specifically, the record reveals that management chose the
selectees because both had OIC experience and were at a higher level
than complainant. The record reveals that the position was too high
of a level for complainant's current grade and level of experience and
that complainant did not have a trained Postmaster replacement to take
his place. The record also reveals that complainant does his job well
as an EAS-11, but needs to be promoted into an EAS-13 or EAS-15, before
training as an OIC, EAS-18.
Where the agency has articulated a legitimate, nondiscriminatory reason
for the personnel action at issue, the factual inquiry can proceed
directly to the third step of the McDonnell Douglas analysis. Chouteau
v. United States Postal Serv., EEOC Appeal No. 01973853 (Mar. 10, 2000).
Accordingly, we next examine whether complainant has presented sufficient
evidence to prove the agency's reasons are merely pretexts for unlawful
discrimination. Complainant argued that he was better qualified for the
position than the selectees, because of his past experience and lower
mileage cost. Complainant argued that he would have driven less than
the selectees to work in Orient, and that his selection would therefore
have been less expensive to the agency.
We find that complainant failed to show pretext. Complainant did not
rebut that the selectees have OIC experience and were at a higher level
than complainant. Even assuming that complainant argument about the
cost of mileage is true, the record reveals that the cost of mileage
was merely one of the criteria for the position, not the only criterion.
The record reveals that the criteria included past experience and current
grade level.
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 (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 21, 2002
__________________
Date
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 Opportunity Assista