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