0120140681
11-16-2016
Willa B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willa B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120140681
Hearing No. 530-2009-00256X
Agency No. 4C-080-0012-09
DECISION
On November 27, 2013, Complainant filed an appeal from the Agency's November 26, 2013, final order 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., which the Commission accepts 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 Complainant established discrimination by preponderant evidence when she was not selected for promotion.
BACKGROUND
During the period at issue, Complainant served as a Postmaster, EAS-20, at the Agency's Glassboro Post Office in New Jersey. On December 31, 2008, she filed a formal complaint of employment discrimination based on race (Puerto Rican2), national origin (Hispanic), age (57), and reprisal (prior EEO activity) when on October 1, 2008, she was not selected for promotion into the position of Postmaster for the Agency's Post Office located in Vineland, New Jersey. The Agency accepted the complaint for investigation.
At the conclusion of the investigation, the Agency provided Complainant a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or, alternatively, a final decision from the Agency based on the ROI. Complainant requested a hearing.
Accordingly, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. The AJ assigned to the case held a hearing on June 11 and 18, 2013, at which six witnesses testified. On October 18, 2013, the AJ issued a decision in which she found that Complainant had not established discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's finding. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to address the issue of sex discrimination, and her case therefore should be remanded to the AJ for further consideration as to whether Complainant was discriminated against based on sex. The Agency did not submit any contentions in opposition to Complainant's appeal.
STANDARD OF REVIEW
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 for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, as is the case here, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume Complainant has established a prima facie case of discrimination with respect to all four bases.
We now turn our attention to whether the Agency articulated a legitimate, nondiscriminatory reason for not promoting Complainant into the position of Postmaster for the Post Office located in Vineland, New Jersey. Burdine at 253. Here, the AJ found that the Agency provided two legitimate, nondiscriminatory reasons for Complainant's non-promotion. See Administrative Judge's October 24, 2013, Decision, at 6. First, the Agency stated that the Selectee provided better answers to the questions during the interview process as those questions related to the Agency's "External First-Class Mail" measurement system (EXFC); Vineland's EXFC at the time; what constituted a last-mile failure; and what went into a "cdpom [City Delivery Pivoting Opportunity Model] calculation." We note here that the Agency provided the Selecting Official's (SO's) interview notes. See ROI, Ex. 10. Second, the Agency stated that the Selectee was selected rather than Complainant because the statistical changes during the Selectee's time as Postmaster in Vineland, New Jersey were superior to those of Complainant during her tenure as Postmaster in Glassboro, New Jersey. These statistical changes were provided in the SO's interview notes. Id. They were also provided in the Agency's National Performance Assessment for each candidate. See ROI, Exs. 17-18. The AJ found that the Agency's reasons were supported by substantial evidence in the record.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her race, national origin, age, and/or prior EEO activity.
Complainant attempts to meet her burden by contending that she was more qualified than the Selectee for the promotion at issue as she has served more time as Postmaster. While Complainant has an impressive work history, we do not find that her qualifications were plainly superior to those of the Selectee. The U.S. Supreme Court has addressed the question of comparative qualifications as evidence of pretext and held that, to demonstrate pretext, a complainant must show the disparities in qualifications between the complainant and the selectee are "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question." Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) (Ash I) and the subsequent 11th Circuit decision in Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42, 608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007) (Ash II).
Likewise, we note that years of experience do not necessarily make an individual more qualified for a particular position nor does it automatically make the nonselected candidate more qualified to meet the needs of the organization. Mc Gettigan v. Dept of Treasury, EEOC Appeal No. 01924372 (Feb. 24, 1993); Ford v. Dep't of Health and Human Svcs., EEOC Appeal No. 01913521 (Dec. 19, 1991); see also Collins v. Dep't of Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004) (length of service without more does not necessarily outweigh other factors impacting job qualifications). In this case, the Agency showed that the Selectee had attributes that justified his selection and the SO affirmed her belief that the Selectee was better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.
Finally, regarding Complainant's contention that the AJ failed to address the basis of sex, we note that a careful review of the record indicates that Complainant did not allege she was denied promotion based on sex. See Complainant's January 9, 2009, Formal Complaint of Discrimination (showing that Complainant checked race, national origin, age, and retaliation as the bases of discrimination); see also, EEO Counselor's Report (showing that Complainant believes she was discriminated against based on race, national origin, age, and retaliation); Agency March 13, 2009, Letter to Complainant (listing Complainant's bases of discrimination as race, national origin, age, and retaliation); Agency January 15, 2009, Letter of Acceptance (stating Complainant's bases of discrimination as race, national origin, age, and retaliation). Assuming that Complainant had alleged sex discrimination, we find that she did not establish that she was subjected to discrimination based on sex. Although the Selectee was male, Complainant did not show that the Agency's legitimate, nondiscriminatory reasons were pretext for sex discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's finding of no discrimination is supported by substantial evidence and that Complainant did not establish discrimination as alleged. Accordingly, the Agency's final order is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/16/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the Commission considers the term "Puerto Rican" to denote a national origin. In any event, the analysis for a claim of national origin discrimination is the same as the analysis for a claim of race discrimination.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140681
2
0120140681