0120092624
10-28-2009
Robert N. Slater,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092624
Agency No. 1H-391-0018-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 17, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Manager, Field
Maintenance Operations, EAS-18, at the agency's Jackson Processing and
Distribution Center in Jackson, Mississippi.
On September 5, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (Caucasian), sex (male), disability (legs), and age
(59) when:
1. on July 7, 2008, he was not selected for an interview for the position
of Manager, Processing/Distribution, EAS-22, and subsequently, he was
denied access to the Review Panel Chairperson; and
2. on or about September 26, 2008, he was not allowed to serve a detail
assignment in the Manager Maintenance Operations Support (MMOS) EAS-19
position.1
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. However, complainant subsequently withdrew his
request. On April 17, 2009, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that complainant did
not establish a prima facie case of race, sex, disability and age
discrimination.2 However, the agency found that complainant established
a prima facie case of reprisal discrimination. The agency nonetheless
found that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext.
Regarding claim 1, the Plant Manager stated that she was the Chairperson
(CP) of the Review Panel that recommended candidates for the position of
Manager, Processing/Distribution, EAS-22, to the selecting official (SO)
for consideration. CP stated that she and two panel members reviewed
the eCareer applications of nine applicants, including complainant, for
the subject position. CP stated that the purpose of the panel "was to
determine who were the most qualified of all applicants." CP stated
that after discussing the applicants' eCareer applications, she and
two panel members decided that four applicants (three white males, ages
56, 56 and 47; one white female, age 48; disabilities unknown for all
four) would be forwarded to the SO. CP stated that the panel did not
refer complainant to SO for consideration because "based on applications
submitted through eCareer, there were other applicants more qualified than
[complainant]."
CP stated that complainant attempted to contact her concerning his
non-referral for an interview for the subject position. CP stated that
she responded to complainant "via telephone and email. We missed each
other when I returned a telephone call." Furthermore, CP stated that
she did not discriminate against complainant based on his race, sex,
disability, age and prior protected activity.
One of the two panel members (P1) stated that the panel reviewed the
applicants' applications and ranked them. P1 further stated that
complainant "did not make the consensus top - 4 that were recommended
to the selecting official."
SO stated that all applicants' applications were sent "for review
before a review panel. The panel was instructed to submit the best
three applicants to me for the interview process. Apparently two of
the applicants were evenly matched so the review committee submitted
four names. One of the four finalists withdrew his application which
is why only three were interviewed. "
Regarding claim 2, complainant's second-level supervisor (S2) stated that
he requested to have the MMOS EAS-19 detail assignment posted "because I
was traveling a lot during the latter part of the last fiscal year and I
needed to have someone to take my place here while I would be traveling
on business." S2 stated that he consulted the Mississippi District
Skills Bank and considered past experience in maintenance operations
in deciding to select a named employee based on her past experience in
maintenance operations. S2 stated that he did not place complainant
in the detail position because complainant "has a problem working with
people at Headquarters and Southeast Area level and the MMOS has to be
able to respond to people at these levels." Specifically, S2 stated
that complainant "has been reprimanded several times for his inability
to communicate with managers at the Area and Headquarters level and this
position requires communications with both levels of the organization."
Moreover, S2 stated that complainant's race, sex, disability, age and
prior protected activity were not factors in his determination not to
place complainant in the detail position.
On appeal, complainant argues that the agency erred in finding no
discrimination. Complainant further states "the absolute arrogance of
the USPS to define this type of promotion as favoritism and then claim
that the EEOC has no business with me is so appalling that the EEOC
should review its past decisions."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for
its actions. Complainant has not demonstrated that these reasons
were a pretext for discrimination. On appeal, complainant argues
that the eventual selectee for the Manager, Processing/Distribution,
EAS-22, position (white female, age 48, disabilities unknown) unfairly
benefited in the selection process because of favoritism by certain
high-level management officials. However, complainant does not assert
that this alleged favoritism was because of the selectee's race, age or
disability status. While favoritism may violate a merit systems principle
and may be addressed in other forums, complainant has not proven, by a
preponderance of the evidence, that a violation of Title VII, the ADEA
or the Rehabilitation Act occurred.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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), 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 (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
October 28, 2009
__________________
Date
1 The record reflects that claim 2 was later amended to the instant formal
complaint. Complainant also added the bases of reprisal to this claim.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
??
??
??
??
2
0120092624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092624
6
0120092624