01A30741
07-03-2003
Paul R. Beard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul R. Beard v. United States Postal Service
01A30741
07-03-03
.
Paul R. Beard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30741
Agency No. 1G771013098
Hearing No. 330-A0-8170X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Mail Processor at the agency's
Houston, Texas facility, filed a formal EEO complaint on November
4, 1998, alleging that the agency had discriminated against him on
the bases of race (Caucasian), national origin (Caucasian), and sex
(male) when he was not selected for the Associate Supervisors Program
(ASP) on August 7, 1998. After passing the business math, reading
and writing exams, and once his application was reviewed by the ASP
review board, complainant was rated �minimal� on a three tier scale:
minimal, strong or excellent. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of racial, national origin and sex discrimination. Specifically, the AJ
determined that the facts do not reasonably give rise to an inference of
discrimination for any of complainant's claims because evidence in the
record shows that there were females, as well as persons of nationalities
and races different from complainant also not selected for the program.
In short, the AJ found that complainant failed to demonstrate
that similarly situated employees not in his protected classes were
treated differently. Moreover, the AJ's analysis reasoned that even if
complainant did meet these requirements, the agency expressed legitimate
nondiscriminatory reasons for its actions to which the complainant could
not show pretext. The AJ, therefore, made a finding of no discrimination,
and the agency's final order implemented the AJ's decision.
ANALYSIS AND FINDINGS
Complainant's allegations must satisfy a three part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp v. Green, 411
U.S. 792 (1973). A 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). Next,
the agency must articulate a legitimate, nondiscriminatory reason for
its action(s). Texas Department 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; St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing 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. Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Complainant may also set forth evidence of
acts from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its final action,
and requests that we affirm it. 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.
The initial inquiry in a discrimination case usually focuses on whether
the complainant has established a prima facie case. Following this order
of analysis, however, 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 he has demonstrated by a
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).
We note that in a non-selection case, pretext may be demonstrated by
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. Dept. of Education, EEOC Request No. 05970561
(August 6, 1998). However, the agency has the discretion to choose from
among candidates with different but equally desirable qualifications so
long as the decision is not based upon an unlawful motivation. Canham
v. Oberlin College, 666 F.2d 1057 (6th Cir. 1981); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 258-259, (1981). Further,
courts have held that Title VII does not protect against errors in
judgment regarding qualifications, only against decisions motivated
by unlawful animus. Turner v. Texas Instruments, 555 F.2d 1251 (5th
Cir. 1977).
In the instant case, the agency offered evidence that the complainant
was exposed to the same procedures as all other applicants to the ASP,
and he did not receive a sufficient rating to be placed in the program.
Moreover, the Manager of Personnel Services (MPS) also stated that
the race of applicants to the ASP program were not listed on their
application form. Complainant's response then, and now on appeal, did not
implicate pretext for the agency actions. For example, he referenced a
joke about racial preference by a co-worker who had no connection to the
ASP review board. This does not suggest pretext. He also alleged that
the first selection for ASP and second selection for ASP were irregular
because the �Rule of Three� was not used both times for interviewees.
The MPS testified that there were �no formula or numbers,� and grants
of interviews were based on the applicants' ratings. She testified
that the two selection processes occurred separately, and no employee
with a �minimal� rating was interviewed the second time. While we note
complainant's arguments regarding the perceived irregularities in the
selection process, the perceived unfairness in the rating system and
the agency's assessment of his qualifications, we nevertheless find
insufficient evidence in the record to substantiate any of these claims.
The AJ's findings are supported by substantial evidence, and we discern
no basis to disturb the AJ's decision.
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 agency's
final order.
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
___07-03-03_______________
Date