0120090098
06-11-2010
Sammie L. Reese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Sammie L. Reese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120090098
Hearing No. 410-2008-00179X
Agency No. 4H-300-0305-07
DECISION
On October 1, 2008, complainant filed an appeal from the agency's
September 12, 2008 final order concerning his 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. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the
Administrative Judge's (AJ) conclusion that the agency did not subject
complainant to discrimination on the bases of race, sex, and age.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Postmaster, EAS-15, at the agency's Luthersville, Georgia Post Office.
Formal Complaint, at 1.
On May 21, 2007, complainant applied for the position of Postmaster,
EAS-18, advertised under Vacancy Announcement No. SE-07214. Report of
Investigation (ROI), Exh. 5, at 1. The position was located at the
Greenville, Georgia Post Office. Id. Complainant was one of six
applicants for the position. ROI, Aff. B, at 75. In a June 15,
2007 memorandum, a three-member Review Committee recommended five
of the candidates, including complainant, to the Selecting Official
(SO) for individual interviews. Id., at 5. On July 25, 2007, after
having previously interviewed the five recommended candidates, the SO
made the selection for the position and complainant was not selected.
Id. at 6-9, 82. The SO was the Manager, Post Office Operations for North
Metro Atlanta, Georgia and supervised both complainant and the selectee.
Id. at 1. At the time of the selection, the selectee (Caucasian, female,
51) worked as a Postmaster, EAS-18 at the agency's Williamson, Georgia
Post Office. Id. at 82.
On November 16, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
sex (male), and age (61) when, on August 8, 2007, he was not selected
for the position of Postmaster in Greenville, Georgia.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on June 18, 2008 and issued
a decision on September 4, 2008. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
Regarding complainant's performance during the interview, the AJ found
credible the SO's testimony that complainant only answered seven of the
eighteen interview questions correctly, while the selectee answered all
of the questions correctly and the other applicants answered at most one
question incorrectly. Administrative Judge's September 4, 2008 Decision
(AJ Decision), at 1-2.
Regarding complainant's preparation for the interview, the AJ found
credible the SO's testimony that complainant, unlike the other applicants,
did not take the time to visit the Greenville Post Office or review the
facility's financial reports. Id. at 2. In addition, the AJ found that
the SO seemed to infer that complainant's failure to do so indicated
a lack of interest in the position. Id. Further, the AJ found that,
although complainant seemed to suggest that this was an irrelevant point
because such preparation was not required, complainant did not contest
the SO's assertion that this was standard practice and one that was
recommended by the Association of Postmasters, an organization in which
complainant holds a leadership role. Id.
Regarding complainant's ties to the Greenville community, the AJ found
credible complainant's testimony that this was a point of discussion
during his interview. Id. Although the SO testified that the selectee's
ties to the community were a factor that favored her selection and that
he was unaware of complainant's ties to the community until after the
selection, the AJ found complainant's testimony to be more persuasive
as complainant's ties to the community were noted several times on
his application. Id.
Regarding the SO's previous selections as Manager, Post Office Operations,
the AJ found credible the SO's testimony that the vast majority of those
selections had been members of racial minority groups. Id. The AJ
noted that the SO readily named three such selections when asked by
complainant's representative to do so. Id.
In his decision, the AJ initially found that complainant had established a
prima facie case of discrimination on the bases of race, sex, and age.
Id. at 3. Next, the AJ determined that the agency articulated a
legitimate, nondiscriminatory reason for complainant's non-selection;
namely, the SO testified that complainant fared poorly on the interview
questions that he relied heavily on. Id. at 4. Finally, the AJ found
that complainant failed to show that the factual basis for the agency's
explanation was incorrect, let alone that the explanation was a pretext
for discrimination. Id. Although the AJ found unconvincing the SO's
testimony that he was unaware of complainant's ties to the community,
the AJ found that this did not undercut the SO's assertion that the
selectee performed better on the interview questions. Id. The AJ found
that the SO neither described the selectee's ties to the community as the
decisive factor in her selection, nor described complainant's lack of ties
to the community as a factor that militated against his selection. Id.
While complainant asserted that he should have been selected because he
had been employed by the agency for 40 years compared to the selectee's
15 years, the AJ found that complainant's argument was overly broad,
especially when the selectee was in a higher pay-grade than complainant.
Id. at 5. The AJ found there was nothing suspicious about the SO's
decision to select an applicant with less seniority who performed
better on interview questions that were designed to test the applicants'
technical knowledge. Id.
CONTENTIONS ON APPEAL
Neither party submitted a statement on appeal.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Thus, on appeal to this Commission, the burden is squarely on the party
challenging the AJ's decision to demonstrate that the AJ's factual
determinations are not supported by substantial evidence. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-17 (Nov. 9, 1999). In this case, this means that
complainant has the burden of pointing out where and why the AJ's findings
are not supported by substantial evidence. Cf. id. (pointing out that
"[t]he appeals statements of the parties, both supporting and opposing
the [AJ's] decision, are vital in focusing the inquiry on appeal so
that it can be determined whether the [AJ's] factual determinations are
supported by substantial evidence"). Complainant did not present any
arguments on appeal to challenge the AJ's factual determinations.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. The AJ found
that the agency articulated a legitimate, nondiscriminatory reason for
complainant's non-selection; specifically, complainant answered seven out
of eighteen interview questions correctly whereas the selectee answered
eighteen out of eighteen interview questions correctly. AJ Decision,
at 4. We note that complainant failed to present evidence that any of
the agency's actions were motivated by discriminatory animus toward
complainant's race, sex, or age. We discern no basis to disturb the
AJ's decision.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the agency's final
order adopting the findings of the AJ's decision.
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
June 11, 2010
Date
2
0120090098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090098