Paula Lasley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 18, 2010
0120090487 (E.E.O.C. Jun. 18, 2010)

0120090487

06-18-2010

Paula Lasley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Paula Lasley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120090487

Hearing No. 470-2008-00097X

Agency No. 4J-460-0083-07

DECISION

On October 27, 2008, Complainant filed an appeal from the Agency's

September 25, 2008 final order 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the Agency's final

order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge's

issuance of a decision without a hearing was appropriate; and (2) whether

Complainant established that she was subjected to discrimination on the

bases of race, color, and reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Human Resources Associate, EAS-11, at the agency's Greater Indiana

District Office in Indianapolis, Indiana. Report of Investigation (ROI),

at Ex. 1.

In May 2007, Complainant applied for a Human Resources Specialist, EAS-16,

position in the Greater Indiana District Office, advertised under Vacancy

Announcement Number GL-07044. ROI, at Ex. 6. As required by the Vacancy

Announcement, complainant submitted an application consisting of a PS

Form 991 and a separate statement of qualifications for each of the nine

knowledge, skill, or ability (KSA) requirements. Id.; ROI, at Ex. 3.

Five candidates applied for the position and Complainant was the only

non-Caucasian candidate. ROI, at Ex. 9; ROI, at 17-19.

The Selecting Official (SO) established a three-member Review Committee

(Committee) to evaluate the candidates' applications against the

position's KSA requirements. ROI, at Ex. 9; Agency's Amended Motion for

Summary Judgment (SJ Motion), at Ex. A. The members of the Committee

included the Labor Relations Specialist from the Greater Indiana District

Office (RC1 - Caucasian), the Postmaster from the Lebanon, Indiana Post

Office (RC2 - Caucasian), and the Manager of Vehicle Maintenance from the

Gary, Indiana facility (RC3 - African-American). SJ Motion, at Ex. 1-3.

RC1 was the Committee Chairperson. Id. at Ex. 1.

According to RC1, each Committee member independently reviewed the

applications and did not meet as a group. Id. RC1 attested that after

the Committee members completed their independent reviews, he called

them separately to ask how they ranked the candidates and each ranked

the five candidates in the same order. Id.

In a June 27, 2007 Promotion Report, the Committee recommended three

candidates to the SO for an interview. ROI, at Ex. 9. According to an

accompanying memorandum, the recommended candidates were those that the

Committee believed best met the position requirements. Id. Complainant

was not one of the recommended candidates. Id. In a June 27, 2007 letter

informing Complainant that she was not recommended, RC1 stated, "Your

non-recommendation is not a reflection of your capabilities, but rather

represents [the Committee's] judgment in identifying and recommending

applicants whom they believe best meet the position requirements." ROI,

at Ex. 4.

On October 18, 2007, Complainant filed an EEO complaint alleging that

she was discriminated against on the bases of race (African-American),

color (not specified), and reprisal1 for prior protected EEO activity

under Title VII when, on or about June 29, 2007, she became aware that

she had not been recommended by the Committee for the position of Human

Resources Specialist, EAS-16, Vacancy Announcement Number GL-07044.

At the conclusion of the investigation, Complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. When Complainant did not object,2 the AJ assigned to

the case granted the Agency's June 6, 2008 motion for a decision without

a hearing and issued a decision without a hearing on September 23, 2008.

The Agency subsequently issued a final order adopting the AJ's finding

that Complainant failed to prove that she was subjected to discrimination

as alleged.

In his decision, the AJ found that Complainant failed to establish a

prima facie case of reprisal discrimination because she was unable

to show that the Committee was aware of her prior EEO activity.

AJ Decision, at 14. The AJ then assumed, arguendo, that Complainant

had established a prima facie case of discrimination on the bases of

race, color, and reprisal, and found that the Agency had articulated

legitimate, nondiscriminatory reasons for its actions; namely, the

Committee felt that Complainant's application failed to specifically

address some of the KSA requirements and contained errors and omissions

that reflected poorly on her qualifications. Id. at 15. In addition,

the AJ found that Complainant failed to show pretext because she did not

provide probative evidence to support her assertions that her race was

improperly disclosed to the Committee prior to her non-recommendation,

the recommended candidates were less qualified, and the Agency's "good old

boy system" prohibited the promotion of African-Americans. Id. at 16.

CONTENTIONS ON APPEAL

On appeal, Complainant raises a number of contentions regarding her

non-recommendation for the position. Initially, complainant argues

that the Committee members "committed perjury" and "falsified their

responses" in their affidavits. Complainant's Appeal Brief, at 1. Next,

Complainant argues that RC1's role as the Committee Chairperson posed

a conflict of interest because she works for him. Id. In addition,

Complainant alleges that the SO, who established the Committee, has not

hired an African-American since 1999 and has been the subject of numerous

EEO complaints. Id. Further, Complainant states that she was already in

a management position when the selectee was still in a carrier position.

Id. Finally, Complainant describes EEO complaints that she has filed

against other White management employees and questions why those employees

are allowed to continue to participate in the Agency's promotions process.

Id. at 2.

In response, the Agency requests that we affirm its final action and

the AJ's decision. Agency's Appeal Brief, at 1. The Agency notes that

Complainant made numerous unsupported accusations in her appeal, but

asserts that she did not refute the legitimate, nondiscriminatory reasons

articulated by the Committee and did not present any evidence that she

was demonstrably superior, or even equally qualified, to the recommended

candidates so as to warrant a finding of pretext. Id. at 6-7.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an

agency's final action shall be based on a de novo review . . ."); see also

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), Chapter 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will be reviewed de novo"). This essentially means that we

should look at this case with fresh eyes. In other words, we are free

to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,

factual conclusions and legal analysis - including on the ultimate fact

of whether intentional discrimination occurred, and on the legal issue

of whether any federal employment discrimination statute was violated.

See id. at Chapter 9, � VI.A. (explaining that the de novo standard of

review "requires that the Commission examine the record without regard to

the factual and legal determinations of the previous decision maker,"

and that EEOC "review the documents, statements, and testimony of

record, including any timely and relevant submissions of the parties,

and . . . issue its decision based on the Commission's own assessment

of the record and its interpretation of the law").

Summary Judgment

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow AJs to issue decisions without a hearing when they

find that there is no genuine issue of material fact. 29 C.F.R. �

1614.109(g). This regulation is patterned after the summary judgment

procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.

The U.S. Supreme Court has held that summary judgment is appropriate

where a court determines that, given the substantive legal and

evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court's

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence,

issuing a decision without holding a hearing is not appropriate. In the

context of an administrative proceeding, an AJ may properly consider

issuing a decision without holding a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, AJs should not rule in favor of one party without holding a

hearing unless they ensure that the party opposing the ruling is given

(1) ample notice of the proposal to issue a decision without a hearing,

(2) a comprehensive statement of the allegedly undisputed material facts,

(3) the opportunity to respond to such a statement, and (4) the chance

to engage in discovery before responding, if necessary. According to

the Supreme Court, Rule 56 itself precludes summary judgment "where

the [party opposing summary judgment] has not had the opportunity to

discover information that is essential to his opposition." Anderson,

477 U.S. at 250. In the hearing context, this means that the AJ must

enable the parties to engage in the amount of discovery necessary to

properly respond to any motion for a decision without a hearing. Cf. 29

C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery,

if necessary, after receiving an opposition to a motion for a decision

without a hearing).

After a careful review of the record we find that the AJ's issuance

of a decision without a hearing was appropriate. The record has been

adequately developed, Complainant was given notice of the Agency's motion

to issue a decision without a hearing, she was given an opportunity

to respond to the motion3, she was given a comprehensive statement of

undisputed facts, and she had the opportunity to engage in discovery.

We find that, even if we assume all facts in favor of complainant,

a reasonable fact finder could not find in complainant's favor, as

explained below. Therefore, no genuine issues of material fact exist.

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainants

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

They must generally establish a prima facie case by demonstrating that

they were subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the Agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal

Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley

v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).

To ultimately prevail, Complainant must prove, by a preponderance of the

evidence, that the Agency's explanation is a pretext for discrimination.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't

of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka

v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Assuming, arguendo, that Complainant established a prima facie case of

discrimination on the bases of race, color, and reprisal, the Commission

finds that the Agency articulated legitimate, nondiscriminatory

reasons for her non-recommendation by the Committee. Specifically,

the Committee members attested that they did not recommend Complainant

because her application failed to address the KSA requirements as

thoroughly and persuasively as the applications by the recommended

candidates. SJ Motion, at Ex. 1-3. RC1 attested that Complainant

did not specifically address six out of the nine KSA requirements, RC2

attested that she was unable to quantify the results of Complainant's

KSA narratives, and RC3 attested that she did not feel that Complainant

demonstrated in her application that she should be recommended for

an interview. Id. Each Committee member cited specific examples from

Complainant's KSA narratives in their affidavits. Id. In addition,

RC1 attested that written communication was a specific KSA requirement,

but that Complainant's application contained many spelling, grammatical,

and word-use errors. Id. at Ex. 1. Further, RC1 attested that the

errors and omissions in Complainant's application showed that she lacked

the attention to detail necessary for the position. Id.

Because the Agency articulated legitimate, nondiscriminatory reasons

for its actions, the burden shifts to Complainant to demonstrate by the

preponderance of the evidence that the Agency's reasons are a pretext

for discrimination. In non-selection cases, pretext may be found where

complainant's qualifications are demonstrably superior to the selectee's.

Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case, the

Commission finds that Complainant has not shown that her qualifications

are superior to those of the recommended candidates. Although Complainant

on appeal implies that she is more qualified than the selectee because

she has been in a management position longer than the selectee has, the

record reflects that, at the time of the Committee's recommendation,

the selectee held a higher-graded position than Complainant. ROI,

at Ex. 6, 12. The selectee held an EAS-12 position and the other two

recommended candidates held EAS-16 positions, whereas Complainant held

an EAS-11 position.4 ROI, at Ex. 6, 10-12. Beyond Complainant's bare

assertions that the Committee lied in their affidavits and the Agency

does not promote African-Americans, she has not produced evidence to

show that she was not recommended by the Committee due to race, color,

or reprisal. Ultimately, the agency has broad discretion to set policies

and carry out personnel decisions, and should not be second-guessed

by the reviewing authority absent evidence of unlawful motivation.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek

v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).

In this case, we find that Complainant has failed to show that the

Agency's explanations are a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission AFFIRMS

the Agency's final order, finding that Complainant failed to establish

discrimination on the bases of race, color, and reprisal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 (Nov. 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 (S0408)

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 (Z1008)

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

June 18, 2010

Date

1 The record reflects that Complainant filed two prior EEO complaints:

(1) Agency No. 4J-460-0004-06 filed on October 26, 2005 and closed on

December 13, 2005; and (2) Agency No. 4J-461-1064-96 filed on March

5, 1996 and closed on April 19, 1996. ROI, at Ex. 2. None of the

management officials involved in the prior complaints are involved in

the instant complaint. Id.; ROI, at 9.

2 The Agency filed a June 6, 2008 Amended Motion for Summary Judgment.

The record reflects that the AJ set a July 24, 2008 deadline for

Complainant to file a response. AJ's July 14, 2008 Prehearing Order.

Complainant submitted a July 24, 2008 response to the Agency. In an

August 8, 2008 letter to the AJ, the Agency noted that Complainant's

response did not appear to have been served on the EEOC and enclosed a

copy. The AJ stated in his September 23, 2008 decision that Complainant

did not file a response to the Agency's Motion. AJ's September 23,

2008 Decision (AJ Decision), at 1.

3 As noted above, although Complainant timely served her response on

the Agency, she did not timely serve a copy of the AJ.

4 The other non-recommended candidate held an EAS-16 position. ROI,

at Ex. 8.

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0120090487

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090487