0120073018
09-10-2007
Sharon L. Mardis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Sharon L. Mardis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120073018
Agency No. 4H-350-0001-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 1, 2007 final decision 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. Complainant,
a Mailing Standard Specialist, EAS-16, Alabama District, Birmingham,
Alabama, filed a formal complaint on January 8, 2007, alleging that the
agency discriminated against her on the bases of race (African-American)
and sex (female) when she was not selected for the position of Operations
Support Specialist, EAS-17, on October 2, 2006.
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). Pursuant
to complainant's request, the agency issued a final agency decision
(FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that she was subjected to discrimination as
alleged.
Complainant raises no new arguments on appeal. The agency requests
that we affirm the FAD. As an initial matter we note that, as this is
an appeal from a FAD issued without a hearing, pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by the
Commission. 29 C.F.R. � 1614.405(a).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, complainant has established a prima facie case of race
and sex discrimination because a White male was selected for
the position complainant sought. The agency has articulated
legitimate, nondiscriminatory reasons for its selection decision.
Although complainant contends that the Selecting Official (Black male)
pre-selected the selectee to "appear diverse", she has not met her burden
of proving, by a preponderance of the evidence, that race-based animus
was a motivating factor. In so finding, we note that 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 Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). A complainant may be able to establish
pretext with a showing that her qualifications were plainly superior
to those of the selectee. Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). Here, complainant has failed to make this showing.
We note that we do not have the benefit of an AJ's findings after a
hearing, as complainant chose a FAD instead, and therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
After a review of the record in its entirety, including consideration
of all statements submitted 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 10, 2007
__________________
Date
2
0120073018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036