Timothy J. Zielinski, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.

Equal Employment Opportunity CommissionJan 5, 1999
01961995 (E.E.O.C. Jan. 5, 1999)

01961995

01-05-1999

Timothy J. Zielinski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.


Timothy J. Zielinski v. United States Postal Service

01961995

January 5, 1999

Timothy J. Zielinski, )

Appellant, )

)

v. ) No. 01961995

) Agency No. 4-H-350-1341-94

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Southeast/Southwest), )

Agency. )

______________________________)

DECISION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (EEOC) challenging the final agency decision of the United

States Postal Service, (agency) concerning his complaint in which he

alleged unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

The appeal is accepted in accordance with EEOC Order No. 960.001.

At the time this complaint arose, appellant was employed with the agency

as a Distribution Window Clerk, PS-05. In a formal complaint, appellant

alleged that the agency discriminated against him on the bases of his

race (Caucasian), color (white), and sex (male) when he was not selected

for Postmaster, EAS-11, in Malcolm, Alabama or Postmaster, EAS-13,

in Magnolia Springs, Alabama. The agency accepted the complaint and

conducted an investigation. At the conclusion of the investigation,

appellant requested a hearing with an EEOC administrative judge (AJ).

However, appellant subsequently withdrew his request, opting, instead for

a final agency decision. Upon remand from the AJ, the agency conducted

a supplemental investigation. Thereafter, the agency issued a final

decision finding no discrimination.

In its final decision dated December 12, 1995, the agency concluded that

appellant established a prima facie case on all bases alleged because the

successful applicant comparison for the Postmaster position in Malcolm was

a Black female, and the successful applicant comparison for the Postmaster

position in Magnolia Springs was a White female. However, the agency

determined that appellant did not successfully rebut the Manager of Post

Office Operations (Selecting Official for both positions, SO)(Caucasian,

female) legitimate reasons for selecting the two female comparisons for

the positions. Specifically, the SO stated that the selections were based

on qualifications and how the applicants answered technical questions

during their individual interviews. She further stated that PS Form

991 showed that appellant was qualified for both positions. However,

appellant did not do well on the interview because he either answered

questions incorrectly or not at all. Consequently, he was not considered

the best qualified for the position. On the other hand, the comparison

selectees were fully qualified and exhibited superior knowledge in the

interview portion of the promotion process; "they aced the interview and

knew exactly what they were talking about and how to apply the knowledge

to the job. Neither [appellant], nor any other candidate, did nearly

as well." Based on this evidence, the agency determined that there was

no evidence to support appellant's complaint. Therefore, it concluded

that appellant did not prove that the agency discriminated against him.

On appeal, appellant contends that his qualifications were superior in

comparison to the selectees. He also, asserts that the SO's record

of promoting white males is "indicative of a manager who harbors

discriminatory motives." Finally, appellant contends that the selectees

were being groomed for the postmaster positions.

Following the standards of proof established by McDonnell Douglas

Corp. v. Green, 411 U. S. 792 (1973); Texas Dept. Of Community Affairs

v. Burdine, 450 U.S. 248 (1981), appellant must show that the agency's

articulated reasons for not selecting him for either of the two postmaster

positions are pretext for discrimination. This can be accomplished either

by establishing that the stated reasons were not the actual motivation for

the action taken or by showing that the agency's explanation is unworthy

of credence. Burdine, 450 U.S. at 254 (1981). At all times, appellant

retains the ultimate burden of persuasion, and it is his 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, 113

S. Ct. 2742, 2749 (1993), citing U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256.

Based on the record before us, the Commission finds that appellant has

failed to prove that the agency's articulated reasons for selecting the

selectees were pretext for unlawful discrimination. First, our review

of the record does not reveal that appellant's qualifications were

plainly superior to those of the selectees. See Bauer v. Bailar, 647

F.2d 1037, 1048 (10th Cir. 1981). Both appellant and the selectees were

well qualified for the position at issue. In this case, the selectees

were viewed as performing better on the interview by successfully

answering all technical questions that were presented to all candidates.

The Commission notes that the agency has the discretion to choose from

among candidates with different but equally desirable qualifications

so long as the decision is not based upon an unlawful motivation.

Canham v. Oberlin College, 666 F.2d 1057 (6th Cir. 1981); Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 258-59. In this case,

the record reveals no evidence of unlawful motivation.

Second, with regard to the SO's record for promoting white males, the

record revealed that thirty postmaster selections were made by the SO.

Among the thirty postmaster positions, twelve Caucasian males were

selected, five African-American Males, nine Caucasian females and

two African-American females. Appellant further asserts that the SO

record regarding male employees (seventeen) is misleading because due

to reorganization actions in the agency, nine of the seventeen male

employees were without jobs. As of result of this reorganization,

the male dislocated employees were placed on a placement list to fill

vacancies. Thus, appellant contends that the individuals place on the

list did not compete for jobs and "would have been offered a job no

matter who was in office." Therefore, appellant argues that once you

subtract the nine men on the placement pool list, the SO only selected

eight males instead of the proffered seventeen. Even if this were true,

the Commission does not find that this evidence shows that the SO promoted

a disproportionate amount of white male employees (eight) compared to the

number of black female employees (two) or white female employees (nine).

Third, we note that interviews by their very nature, inject an element

of subjectivity into a selection process. However, subjective factors

alone do not make a selection discriminatory. Appellant must show

that the selecting officials were improperly motivated. We find that

appellant has not done this. Furthermore, contrary to appellant's

contentions, a preselection does not violate Title VII when it is based

on the qualifications of the preselected party and not on some basis

prohibited by Title VII. See Goostree v. State of Tennessee, 796 F.2d

854, 861 (6th Cir. 1986); and Marvin v. Secretary of Veteran's Affairs,

EEOC Appeal No. 0181677 (July 12, 1989). Appellant has not presented

any persuasive evidence on appeal which would further support his claim.

Therefore, we find that he has failed to prove, by a preponderance of

the evidence, that the agency discriminated against him as alleged.

In accordance with this decision, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the final agency decision

finding that it did not discriminated against appellant on the bases of

race/color or sex when he was not selected for two postmaster positions.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is

received by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan 5, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations