0120121431
07-12-2012
Nancy J. Banker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Nancy J. Banker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120121431
Hearing No. 540-2011-00134X
Agency No. 1E-841-0007-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 30, 2011 final action concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Express Mail Service Clerk at the Agency's Salt Lake City, Utah Processing and Distribution Center.
On August 12, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of religion (Lutheran) and age (over 40) when:
on April 2, 2010, she was not given an interview or selected for the position of Complaints and Inquiry Clerk; and on June 28, 2010, she was not selected for the position of Complaints and Inquiry Clerk.
The record reflects that Complainant applied for the same Complaints and Injury Clerk position, in response to two different postings, one that closed on February 5, 2010 (hereinafter referred to as the "February posting"), and one that closed on April 12, 2010 (hereinafter referred to as the "April posting"). The record further reflects that there was no selection made for the February posting, and Complainant was not the selectee for the April posting.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On August 22, 2011, the Agency submitted its Motion for a Decision Without a Hearing. Complainant responded to the Agency's motion, requesting that the motion be denied.
On November 1, 2011, the AJ issued a document entitled "Order and Decision Granting Agency's Motion, In Part, In Its Favor." Therein, the AJ granted the Agency's request for a decision without a hearing concerning Complainant's claim that she was not given an interview or selected for the February posting. The AJ noted that in regard to the February posting, Complainant's PS Form 991 was missing data such as contact person, telephone numbers and Knowledge, Skills, and Abilities (KSAs). Complainant identified the position she was applying for as "Claims and Inquiry Clerk" instead of "Complaints and Inquiry Clerk." The AJ noted that according to the selecting official (SO), Complainant was not interviewed for the subject position because of the missing pertinent information. Based on this evidence, the AJ concluded no discrimination had been proven with regard to the February posting.1
The AJ held a hearing by videoconference on December 7, 2011, with respect to Complainant's claim that she was not selected for the April posting. The AJ appeared from Phoenix, Arizona, while the parties and witnesses were located in Salt Lake City, Utah. The AJ issued a bench decision on December 7, 2011, finding no discrimination.
In her decision, the AJ found that Complainant established a prima facie case of discrimination.2 The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. The AJ further found that Complainant did not establish that more likely than not, the Agency's articulated reasons were a pretext to mask unlawful discrimination. Specifically, the AJ noted that SO stated that the selectee was the most qualified candidate based on her work experience and that she had done well during the interview.
The AJ noted that seven candidates, including Complainant, applied for the position of Complaints and Injury Clerk in accordance to a posting that closed on April 12, 2010. In her application, Complainant misstated the name of the position for which she was applying, failed to include names of reference, phone numbers, and failed to address the KSAs. Specifically, the AJ noted that the PS Form 911 submitted by Complainant added a few names but no telephone numbers and no KSAs. The AJ noted that SO automatically deducted one point per question that was not filled out correctly because he felt it was important that the subject position required someone who was detail-oriented.
The AJ noted that following the interviews, SO and a retail specialist (RS) agreed that the selectee was best qualified based on her work experience and highest interview score. The AJ noted that the selectee possessed enthusiasm, a positive attitude, and common experience and knowledge which the Agency found important as the subject position involved speaking with irate customers and calming them. The AJ noted that during the hearing, Complainant's demeanor "was one in which she sometimes appeared frustrated, gruff, loud, argumentative and aggravated, making comments under her breath. Part of her demeanor, [however], was perhaps due to nervousness. Nevertheless, I do find [SO's] explanation credible."
The AJ noted that SO stated that he initially asked the Retail Manager to be on the panel with him but she was unable to do so. SO stated that as a result, he asked RS to be on the panel with him. SO stated that he and RS interviewed the candidates and "kept our separate notes, asked the same questions to all the employees, and then afterwards - - I believe it did take two days for the interviews, and after they were all done we got together and compared notes and made up a little chart as far as the rating for I believe both the 991 and for the interview questions, rating them each one." SO stated that he and RS came to the conclusion that the selectee was the best qualified because of her work experience and did well during her interview. Specifically, SO stated that according to the matrix, the selectee "came out as No. 1 with the highest points."
SO stated, for instance, that he gave the selectee a rating of 5 on KSA 1. Specifically, SO stated that the selectee's PS Form 911 was rated high because of her work experience and "that's just the paperwork part of it. The interview process also we're looking for so many things. This is the best qualified job. I was looking for the best person to come in here and take that position. It's not a senior qualifier. We don't have to take someone because they've been in the post office so long or has seniority. It's the best qualified, so it's a subjective process, obviously, but we're looking for the best candidate, and [selectee] came in with a lot of enthusiasm, a lot of positive attitude I guess to it. She answered the questions very well. This job needs someone that's very positive, that's very calming, that's very knowledgeable, that can take irate customers and calm them down and try to resolve these issues, that has good people skills, good verbalization."
SO stated that he did not select Complainant for the subject position because he did not feel that she was qualified. SO stated that while Complainant "had some good answers, she had some good experiences. I took that all into consideration, and whether it's supervisory or whatever, those are great experiences to have, but that doesn't automatically mean that you're the best person, the best qualified for this particular position...but going off the 991s and going off of the answers to all of the questions, we asked exactly the same questions, and the way they were answered and the best way we could to subjectively rate this, we came up with this matrix, and [selectee], just with her personality and her knowledge, just was head and shoulders above the others."
For instance, SO stated that he gave Complainant a rating of 1 on KSA 1. Specifically, SO stated "it was hard for me to give [Complainant] a five or anything close to it when the job position was incorrect on the top. They didn't have any reference numbers down here, telephone numbers as far as the people concerned. KSA to me is the whole page...so I think automatically I took off, I believe, probably at least one point just because the rest of the page was not filled out correctly. The information she has here isn't bad, as far as that's concerned, but I take the overall KSA, meaning the entire page, into perspective when I do that as far as rating of the 991 is concerned. It's all part of the process as far as . . . being detail-oriented and making sure this is accurate."
With respect to Complainant's allegation that the selectee was given favorable treatment because of her religion, SO denied it. SO acknowledged that he and the selectee share the same religion, but that this matter did not play any role in his decision. SO further stated that the church activities the selectee listed in her application were related to community service. SO stated he never considered the candidates' religious affiliation "in any job, nor would I consider it as far as my position is concerned. To me, that's community work or going out in the community and doing something. It's just like anything else. It doesn't matter who it's for or what they're doing. It's just experience that they've had. I do not look at it as a religious affiliation." SO stated that during the relevant time he and RS never discussed the candidates' religion. SO further stated that religion "never plays a role in any of my selections. It has nothing to do with the qualifications of the position. It has nothing to do with anything, as far as I'm concerned."
With respect to Complainant's allegation that the Agency was in violation of Title VII for including religion information in the application, the AJ noted that a review of the record indicates that the Agency did not require the candidates to provide religion information. The AJ found that the candidates voluntarily provided information concerning their religion in their applications.
The AJ noted that during her testimony, RS stated that following the interviews, she and SO came to a conclusion that the selectee was best qualified for the subject position. Specifically, RS stated that she recalled the selectee "being well prepared for the interview, positive energy, she presented herself really well, and she seemed to have addressed the questions pretty specifically not only during the interview but also on the KSAs."
RS stated that in her PS Form 991, the selectee "had the requirement and factor present, as well as a reference and telephone numbers and names for each of the people to document that, which is the requirement, and I believe [Complainant] . . .[I]n addition to not having the correct name for these jobs, she also didn't list the requirements..." RS stated that as a result Complainant received a lower rating than the selectee. RS stated "as the person who works in the complaints and inquiry section, you're going to be working with customers who are contacting the Postal Service about problems that can't always be resolved with a phone call, so when you write back to them, you represent the Postal Service, and it's important that you have good writing skills so that the Postal Service appears professional and concerned, and that's why I felt like that was an important attribute to have."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding no discrimination. For instance, Complainant argues that the AJ "was biased toward the agency from the inception. The Agency was not sanctioned for denying the complainant proper Discovery of agreed upon information and she then gave credibility at the hearing to party, [SO], who had lied in his affidavit by stating that he didn't know the religion of [selectee], whose 991 clearly provided this information."
Moreover, Complainant argues that the AJ coerced her "into 'just answering some questions' which turned the complainant into a witness, despite her not being prepared to specifically defend her 991 but was, rather, prepared to solely ask questions of the Agency parties."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at 9-16 (Nov. 9, 1999).
Initially, the Commission shall address Complainant's objections to the manner in which the AJ conducted the hearing. Specifically, Complainant contends that the AJ exhibited bias by allowing the Agency to ask her questions during the hearing. The Commission notes that EEOC regulations and Commission precedent provide AJ's with broad discretion in the conduct of a hearing. See 29 C.F.R. � 1614.109; see also EEO MD-110, at 9-10. The Commission has reviewed the hearing transcript as well as other documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 12, 2012
__________________
Date
1 On appeal, Complainant does not challenge the AJ's November 1, 2011 summary judgment finding of no discrimination regarding the February posting. Therefore, we will not address this issue further in this decision.
2 The record reflects that prior to the December 7, 2011 hearing, Complainant withdrew age as a basis. Therefore, we will only focus on Complainant's religion as a basis of the alleged discrimination.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121431