0120083273
01-07-2009
Winnie S. Anthony, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
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Winnie S. Anthony,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083273
Hearing No. 420-2008-00037X
Agency No. 4H390009707
DECISION
BACKGROUND
Complainant filed an appeal from the June 25, 2008 agency decision
implementing the June 23, 2008 of the EEOC Administrative Judge
(AJ) finding no discrimination. Complainant is 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. For the following reasons, the Commission VACATES the
agency's decision.
At the time of events giving rise to her complaint, complainant worked
as a Sales Service Associate at the Pemberton Post Office in Vicksburg,
Mississippi.
In her complaint, complainant alleged that the agency discriminated
against her on the bases of race (African-American), sex (female),
color (light-skinned), and age (49) when she learned on June 1, 2007,
that she was not referred for an interview for the position of Associate
Supervisor, Customer Services at the Vicksburg, Mississippi Post Office.
Vacancy Announcement No. SE-07054 (VA) reveals that the purpose of
the position was to supervise a group of employees in the delivery,
collection and distribution of mail, and in window service activities.
The VA also reveals that there were seven knowledge, skill and ability
(KSA) requirements for the position: leadership, decision making, human
relations, communications, safety, and employee/management (labor)
relations. The seventh KSA, an examination requirement, required that
applicants demonstrate written communication, mathematical computation
and reasoning skills by successful completion of agency Test 600. The VA
reflects that the seventh requirement was not required for graduates
of the Associate Supervisor Training Program (ASP), eligible former
supervisors, or lateral/lower level EAS assignments but was required for
"EAD" employees seeking a competitive promotion from a lower EAS level.
The VA reveals that a selectee requiring completion of the ASP would be
temporarily detailed to the position of Associate Supervisor, Customer
Services for the purpose of completing the 16-week ASP training. Upon
successful completion of ASP training, the selectee would be promoted to
the position of Supervisor, Customer Service. Applicants had to submit
an employment application (Form 991) and address the KSA requirements.
Complainant was one of 17 applicants for the position.
A Review Committee comprised of a Chairperson and two members (Committee
Member-1 and Committee Member-2) reviewed the applications for the
positions, referring five applicants as candidates who could be selected
for the vacant position. The Review Committee did not make the selection
to fill the position.
At the conclusion of the EEO investigation, complainant was provided
a copy of the Report of Investigation (ROI) and she requested a hearing
before an AJ. The agency submitted a Motion for Summary Judgment (Motion)
on February 16, 2008. Complainant submitted Proposed Findings of Facts
and Conclusions of Law on February 11, 2008, which the AJ considered
as complainant's response to the agency's Motion. The AJ granted the
agency's Motion and found no discrimination.
In her decision, the AJ found that complainant had established a
prima facie case of race, color, sex, and age discrimination because
the selectee/referral was a White male who was significantly younger
than complainant.1 The AJ concluded that the agency had articulated a
legitimate, nondiscriminatory reason for its action in not referring
complainant, noting that the agency stated that it did not refer
complainant because she did not provide sufficient information in
Employee/Management Labor Relations criteria on the KSA portion of her
application. The AJ concluded that complainant had failed to provide
sufficient evidence to overcome the agency's reason for the agency's
action and had not shown that the agency's decision was based on unlawful
motivation. The AJ noted that one of the five applicants referred for
the position was a Black female. The AJ further noted that one of the
candidates referred was six years older than complainant and that the
Review Committee was not aware of the ages of any of the applicants
whose applications they reviewed.
Regarding complainant's allegation that two of the referred candidates
failed to submit their applications timely, the AJ noted that the agency's
failure to follow its own regulations or procedures was not indicative
of pretext and that complainant had not shown that the reason that
the agency chose to consider all applications, whether timely or not,
was unlawfully motivated. The AJ also noted that complainant had not
provided evidence of when her application was submitted.
Regarding complainant's allegation that the selectee had been preselected,
the AJ found that complainant had not shown that the selectee was
promised the position and even if preselection did occur, complainant
had not shown that a prohibited basis motivated the preselection.
STANDARD OF REVIEW
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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 the AJ 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,
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
Because this is an appeal from a decision 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).
ANALYSIS AND FINDINGS
Upon review, the Commission finds that there are genuine issues of
material fact and credibility issues regarding the reason why complainant
was not referred as a candidate for an interview. Therefore, judgment
as a matter of law for the agency should not have been granted.
The Chairperson stated that complainant was not referred for an interview
because she failed to demonstrate a level of accomplishment of the VA
requirements which would have placed her in the top five applicants. He
stated further that complainant was evaluated on her written demonstration
of the KSAs described on the VA and described by her in her Form 991.
The Chairperson stated that all applicants were evaluated on the same
criteria as complainant and that the Review Committee evaluated the
narrative description of the requirements of the position as described
on each applicant's Form 991. He stated further that each applicant's
description of "accomplishment/demonstration" of the KSAs was given a
numerical evaluation between 1 and 3, with one "1" being the minimal
demonstration level and "3" being the highest demonstration level.
The Chairperson further stated that the greater the impact of the result
and the higher the complexity of the stated demonstration, the higher the
evaluation rating applied to the KSA requirement. He stated that each
KSA received a numerical evaluation plus scores of Test 600 which was
used to determine each applicant's standing and that this procedure was
applied to all applicants in the package. The record does not contain
any evidence of the scores mentioned by the Chairperson nor the ranking
for applicants' KSAs. Although the Chairperson stated that he did not
retain a copy of his final KSA evaluations, he does not explain why the
KSA evaluations were not retained. The two Review Committee members
also did not provide any numerical scores or KSA scores and also, the
two did not mention that the KSAs were rated numerically.
Review Committee Member-1 stated that complainant was not referred
because she failed to address one of the KSAs to the degree where the
requirement was met. Review Committee Member-1 did not identify which
KSA she referenced nor did she provide any elaboration regarding her
conclusory response. Similarly, Review Committee Member-2 stated, without
elaboration, that complainant did not demonstrate all qualifications for
the position as required. She too did not identify which KSAs complainant
failed to meet. If in fact, as the agency has asserted, complainant
failed to meet the KSAs, there is no record as to complainant's KSA
score or the scores of the applicants who were referred or not referred.
Neither is there any evidence in the record that any specific KSA may
have been accorded more weight.
The Chairperson stated that the "Associate Supervisor Review Committee
Guidelines for All Applicants" (Guidelines) served as the directing
document in the evaluation process and provided the criteria to be used.
The Chairperson, however, failed to provide a copy of the Guidelines,
explaining that he was not authorized to provide a copy. The record also
does not contain a copy of the Guidelines.2 In order to grant summary
judgment in favor of the agency, the factfinder would have to accept as
true the Review Committee's use of unknown criteria in the Guidelines
and accept that these unknown criteria disqualified complainant from
being referred. The factfinder would also have to accept as true the
Chairperson's unexamined and conclusory statements about complainant's
KSA scores, in the absence of any evidence of KSA ratings for complainant
or any applicant and in the absence of any cross-examination concerning
the KSA rating. The lack of evidence regarding the KSA scoring and
the Guidelines criteria in light of the evidence that complainant has
served as a supervisor in the agency, had taken the Test 600 and was an
ASP graduate, balanced against the experience of the selectee, is more
reason why a hearing should be held so that witnesses can be subjected to
cross-examination. The U.S. Supreme Court has held that, in ruling on a
motion for summary judgment, 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. Anderson, 477 U.S. at 255.
Although the Commission does not second guess the nondiscriminatory
decisions of management, the record raises material factual issues
regarding how the referral was made and applicant qualifications.
Complainant had years of prior supervisory experience in the agency,
had taken the Test 600, successfully completed the ASP, but was not
referred for an interview. On the other hand, the record reflects
that the selectee had no supervisory experience within the agency.
In addition, there is no evidence that the selectee had previously
successfully completed the ASP. The selectee's only supervisory
experience was from October 2000 to November 2002, when he worked as
a Sales Manager in retail for a department store and as a Manager at a
sporting goods store from August 1995 to May 1997.
The Commission also notes that the VA announced a closing date of March
28, 2007. Complainant's application is stamp dated as having been
received on March 27, 2007. Complainant alleges that the selectee was
at least one of the applicants who had submitted a late application.
Although the Chairperson and Committee Member-2 identified when
complainant's application was received, there is no evidence regarding
whether the other applications were timely. If applications were received
late, the record does not disclose why late applications would have been
considered and not removed from consideration.
Although members of the Review Committee stated that they were unaware
of the race, sex, age and color of applicants, the record reflects
that information provided in complainant's resume concerning when she
completed high school and college and the number of years she occupied
various positions could suggest her age, although the Review Committee
members may not have known complainant's exact age. Other applications
contain similar information that could identify age or race. Moreover,
complainant stated in her affidavit that the Review Committee Chairperson
and Committee Member-1 were aware of her various bases, noting that she
had interviewed with the Chairperson and Committee Member-1 when she
worked in Human Resources and also that her Form 991 reflects that she
attended a historically Black college.
Thus, because we find there are genuine issues of material fact, the
complaint is being remanded for a hearing.
CONCLUSION
Accordingly, the Commission VACATES the AJ's finding of no discrimination
and REMANDS the complaint for a hearing in accordance with this decision
and the Order set forth herein.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC's
Birmingham District Office the request for a hearing within 15 calendar
days of the date this decision becomes final. The agency is directed to
submit a copy of the complaint file to the EEOC Hearings Unit within 15
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
January 7, 2009
__________________
Date
1 The record reveals that the selectee was 38 years old at the time of
the referral and selection. One of the referred applicants was about
six years older than complainant and the other three referrals were
younger than complainant.
2 The investigator noted in the ROI that management stated that viewing
the Guidelines was restricted and management was unable to provide a
copy.
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0120083273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036