Pamela A. Brooks, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western) Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01990947 (E.E.O.C. Apr. 14, 2000)

01990947

04-14-2000

Pamela A. Brooks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western) Agency.


Pamela A. Brooks v. United States Postal Service

01990947

April 14, 2000

Pamela A. Brooks, )

Complainant, )

) Appeal No. 01990947

v. ) Agency No. 4F945013198

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western) )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleged that she was discriminated against on the bases

of sex and in reprisal (prior protected activity) when on February 6,

1998 she was not selected for a second interview for the position of

Postmaster, Pinole, California, Post Office.

The record reveals that during the relevant time, complainant was

employed as the Postmaster, at the Crockett Post Office. Believing she

was a victim of discrimination, complainant sought EEO counseling

and subsequently filed a formal complaint on April 8, 1998. At the

conclusion of the investigation, complainant was informed of her 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, the agency

issued a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination and/or retaliation. In the

alternative, the agency concluded that complainant failed to demonstrate

that the agency's legitimate, nondiscriminatory reasons were a pretext

for discrimination or retaliation. Complainant makes no new arguments

on appeal. The agency requests that we affirm its FAD.

The record reveals that on February 4, 1998, complainant was interviewed

for the position of Postmaster for Pinole, California. The interview

was conducted by a committee convened for the purpose of identifying the

most qualified candidates. Based upon the committee's recommendation,

qualified candidates were asked for a second interview. The second

interview was conducted by the selecting official. Complainant alleges

that the interview committee discriminated and/or retaliated against

her when they did not certify her for an interview with the selecting

official. Complainant maintains that she was better qualified than

others who were selected for the second interview. The agency, as part

of its investigation, prepared a comparative analysis of the eighteen

employees who participated in the initial interview.

The comparative analysis reports that of other six females interviewed,

two were certified for an interview with the selecting official. Of the

twelve males interviewed, one was selected for an interview with the

selecting official. According to the analysis, there were four candidates

who had prior EEO activity. None of the candidates who had prior EEO

activity were recommended for an interview with the selecting official.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). See Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant

must 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 consideration was a factor in

the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Applying these standards to the instant case, we find that the agency has

established a legitimate, nondiscriminatory reason for complainant's

nonselection. Notably, the agency indicates that complainant was

unable, during the initial interview, to answer important questions,

that she did not complete her application for promotion, and moreover,

that other applicants appeared more able to perform the duties of the

job. While complainant indicates that she is more qualified and that

she actually trained one of the people who was selected for the second

interview, we find that she has failed to demonstrate that discrimination

or retaliation motivated her nonselection. It is complainant's burden

to demonstrate by a preponderance of the evidence that the agency's

action was based on prohibited considerations of discrimination, that

is, its articulated reason for its action was not its true reason but

a sham or pretext for discrimination and retaliation. Texas Department

Of Community Affairs v. Burdine, 450 U.S. 248, 253 (198 1); St. Mary's

Honor Center v. Hicks, 509 U.S 502 (1993).

Therefore, 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:

April 14, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.