Robert N. Slater, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 2009
0120092624 (E.E.O.C. Oct. 28, 2009)

0120092624

10-28-2009

Robert N. Slater, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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