0120091804
06-18-2010
Steven G. Constable, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Steven G. Constable,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120091804
Hearing No. 160-2005-00362X
Agency No. 4B-120-0029-04
DECISION
On March 6, 2009, Complainant filed an appeal from the Agency's February
27, 2009 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency's Troy Post Office in Troy, New York.
On September 16, 2004, Complainant filed an EEO complaint alleging that
he was discriminated against on the bases of age (52) and reprisal for
prior protected EEO activity when:
1. On August 16, 2004, he was not selected for the Associate Supervisor
Program (ASP) in Schenectady, New York;
2. On October 15, 2004, and December 8, 2004, he became aware that he
was not selected for Acting Supervisor (204B) assignments at the Troy,
New York Post Office; and
3. On December 8, 2004, he was not selected for a final interview for
the position of Postmaster in Cherry Plain, New York.
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. When Complainant did not object, the AJ assigned to
the case granted the Agency's April 5, 2005 motion for a decision without
a hearing and issued a decision without a hearing on February 18, 2009.
Initially, the AJ determined that Complainant failed to establish
a prima facie case of discrimination on the alleged bases. The AJ
determined that there was no formal 204B application process for the
position and Complainant had stated to the Postmaster that he did not
want to be considered for supervisory position. Further, as to the other
positions, the AJ found that Complainant was not treated differently than
similarly situated employees outside his protected groups regarding not
being interviewed and the non-selections. As to reprisal, Complainant
had not shown that any of the selecting officials knew of his prior
protected EEO activity and there was no causal connection between the
prior protected activity and the non-selections.
Next, assuming Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. The Agency
contended that the best applicants were interviewed and selected for
the ASP and Postmaster positions. Complainant was not interviewed
for the ASP as he received an overall rating of minimal demonstration
and no applicants who received this rating were interviewed. Further,
Complainant had advised the Postmaster of his non-interest in supervisory
positions, thus he was not considered for the 204B positions. As to the
interview and non-selection for the Postmaster position, Complainant was
the only candidate who lacked knowledge of the Agency's Transformation
Plan and he failed to write his PS Form 991 essay responses in the
Agency's preferred Star format. The AJ found that Complainant failed
to establish that the Agency's reasons were pretextual and therefore
had not been discriminated against on the bases of age or reprisal.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency has discriminated against
him throughout his career. Further, he states that he has proven
himself capable and management discriminated against him by withholding
assignments from him. Accordingly, Complainant requests that we reverse
the Agency's final order. The Agency requests that we affirm the final
order.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge'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").
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 an AJ to issue a decision without a hearing when
he or she finds 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures 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
administrative judge 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
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must first
establish a prima facie case 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-804 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(applying the analytical framework described in McDonnell Douglas to an
ADEA disparate treatment claim). The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the Agency is successful, the burden reverts back to the
complainant to demonstrate by a preponderance of the evidence that
the Agency's reasons were a pretext for discrimination. At all times,
complainant retains the burden of persuasion, and it is his/her obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
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, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim
(1), the Operations Manager (OM) asserts that the ASP review committee
rated the applicants' ASP tests, writing samples, and Applications for
Promotion (PS Form 991) according to the ASP Guidelines from Headquarters.
Report of Investigation (ROI), OM's Aff. at 4. The application packages
were rated as "Not Demonstrated," "Minimal," "Strong," or "Excellent. Id.
According to the Guidelines, if an applicant demonstrated more than four
Minimal ratings, the applicant would not be eligible for an interview.
Id. Complainant had four or more Minimal ratings and was therefore not
selected for an interview. Id.
Regarding the October 15, 2004 nonselection alleged in claim (2),
the Postmaster (PM) states that employees advised their supervisors if
they were interested in Acting Supervisor positions and if there was
a vacancy, that employee would be considered. ROI, PM's Aff. at 8.
Complainant advised PM that he was not interested in a position because
he was seeking employment outside of the Agency, but would inform him
if he changed his mind. Id. PM asserts that Complainant approached
him in September 2004, expressing interest in a 204B assignment, months
after the selectee was in this position. Id. As to the December 8,
2004 nonselection, PM asserts that Complainant expressed interest in
an Acting Carrier Supervisor position, while the eventual selectee
expressed interest in an Acting Mail Processing Supervisor position.
Id. at 14. PM avers that these two positions required separate areas
and degrees of job knowledge. Id. PM affirms that the selectee was
familiar with the skills of each employee and timeframes in which work
must be completed while Complainant did not possess the same level of
job and operational knowledge. Id.
Finally, as to claim (3), the Chair of the review board for the Cherry
Plain Postmaster position asserts that the board reviewed the applicants'
PS 991 Forms and interviewed all five candidates. ROI, Chair's Aff. at
5. Further, the Chair states that the board selected the three best
qualified candidates for final interviews. Id. at 6. He avers that
the board believed that all five candidates could do the job, however
Complainant's interview and PS 991 Form fell short of what they felt was
best qualified. Id. Finally, he affirms that the three best qualified
had much better interviews and better job knowledge than Complainant.
Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). In non-selection cases, a complainant
can establish pretext by showing that his qualifications are "plainly
superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). We find that Complainant has failed to proffer any
evidence to demonstrate that his qualifications were plainly superior
to those of the selectee. Aside from Complainant's bare assertions,
the record is devoid of any persuasive evidence that discrimination was
a factor in the Agency's decision. At all times the ultimate burden of
persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons,
and that the Agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden. Accordingly, we find that
Complainant has failed to show that he was discriminated or retaliated
against as alleged.
CONCLUSION
Accordingly, 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 order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate, and a preponderance of the record
evidence 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
June 18, 2010_______________
Date
2
0120091804
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091804