0120102341
08-27-2010
Carol D. Nash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Carol D. Nash,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120102341
Hearing No. 471-2008-00048X
Agency No. 4J-493-0068-08
DECISION
On April 29, 2010, Complainant filed an appeal from the Agency's March 28, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the AJ properly issued a decision without first holding a hearing, in favor of the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Customer Services, EAS-17, at the East Paris Branch, in Grand Rapids, Michigan. On October 24, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity [under Title VII], when, on or about June 30, 2008 she became aware of her non-selection for the position of Manager of Training.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 29, 2009, motion for a decision without a hearing and issued a decision without a hearing on March 23, 2010.
AJ Decision
The AJ found that Complainant failed to offer evidence that the responsible management official (RMO), a Caucasian male, had knowledge of her EEO protected activity. The AJ noted that the RMO's knowledge of a Climate Assessment Report (which apparently addressed Complainant's job performance and relationships with subordinates) was not evidence of EEO protected activity by Complainant. Thus, Complainant could not establish the second prong of the prima face case of retaliation. Thus, the AJ found that the undisputed evidence does not support Complainant's allegation of retaliation when she was not selected for the Manager of Training position.
Addressing race discrimination, the AJ found that Complainant could establish a prima facie case because she applied and was found qualified for the Manager of Training position. She was found to be one of three top qualified candidates by the Review Committee. RMO interviewed Complainant along with two other recommended candidates. Complainant was not selected for the position. The Selectee was a Caucasian female.
The AJ then found that the Agency articulated legitimate, nondiscriminatory reasons for selecting the Selectee. RMO interviewed all three final candidates for the Manager of Training position, including Complainant and the Selectee. RMO stated that he considered the interview as well as the Form 991 applications from the candidates. RMO selected the Selectee for the position based on her demonstrated knowledge during her interview and her Form 991 application. He recognized that she successfully supervised both EAS and Craft employees in her current position. The AJ noted that the assessment of applicant requirements also showed that the Selectee scored a 15 which was the highest score.
RMO stated that he did not select Complainant because she failed to demonstrate the same thorough knowledge as compared to Selectee during her interview. He found that Complainant did not develop her KSAs in the application as well as the Selectee or the other candidate. The AJ noted that the record shows that Complainant scored a 13 on the applicant requirement assessment while the other unsuccessful candidate scored a 15. The RMO acknowledged that Complainant has training experience, but he did not find her to be the best candidate based on her interview responses and application.
As to pretext, the Aj noted that Complainant was required to put forth evidence, not simply bare allegations, that the reasons provided for selecting the Selectee and not selecting her were not true but a pretext for race discrimination or retaliation for prior EEO activity. The AJ found that Complainant's arguments did not raise an issue of fact concerning the truth of RMO's reasons for not selecting her. The AJ noted that Complainant admitted that when she asked RMO why she was not selected, he told her hat her weaknesses were in the presentation of her KSAs in her application and her responses during the interview. The AJ found that this was consistent with RMO's reasons provided during the EEO investigation in this case.
The AJ noted that Complainant speculated that RMO really based his decision on a Climate Assessment Report that addressed her job performance as a supervisor. The AJ noted that in fact, Complainant continually referenced this as the reason for her nonselection. She speculated that RMO's statement on June 30, 2008 that he had always supported her after he explained why she was not selected, showed that he based his decision on the Climate Assessment Report.
Complainant maintained that the RMO's consideration of the Climate Assessment Report was more retaliatory than race-related because it included character information about her. The AJ found, among other things, that there was no evidence that RMO considered the Climate Assessment Report in his selection for Manager of Training. The AJ noted that RMO never told Complainant it was considered and his statement to her on June 30, 2008 did not clearly suggest this. The AJ further found that even if it is assumed that RMO considered the Climate Assessment Report, this did not suggest retaliation or race discrimination by RMO in his selection decision. The AJ found that Complainant's contention that the Climate Assessment Report contained "character defamation" is not EEO activity and in itself is not evidence of race discrimination or retaliation.
The AJ also noted that nothing in the Climate Assessment Report showed that Complainant alleged race discrimination or other EEO protected activity at that time. The AJ explained that the Climate Assessment Report concluded that there was a conflict between management and the employees. The AJ noted that it was found that Complainant's management style played a role in causing the problems at the Kentwood office. The AJ did acknowledge, however, that the Climate Assessment Report criticized Complainant's management skills.
Further, the AJ found that the Climate Assessment Report was already the subject of an EEO complaint fled by Complainant (EEOC Case No. 471-2008-00128X; Agency Case No. 4J-493-0080-07).1 The AJ noted that it had already been determined in that case that there was no race or sex discrimination with respect to the issuance of the Climate Assessment Report and the Agency's attempts to improve Complainant's management style. The AJ noted that since this matter had already been reviewed and a decision issued, the Complainant cannot re-litigate her allegations regarding the Climate Assessment Report in the current case. In sum, the AJ found that the Climate Assessment Report and any speculative consideration of the report did not establish a question of fact that the RMO discriminated against Complainant based on her race or in retaliation for prior EEO activity.
The AJ noted that Complainant also argued that she was more qualified than the Selectee based on her 10 years of experience in the Training Department. She asserted that the Selectee had not worked in the Training Department. Complainant also speculated that the Selectee did not have the knowledge that a craft employee needs for training. The AJ concluded that the undisputed material facts did not show that the Complainant was observably superior in her relevant qualifications than the Selectee. The undisputed record showed that the Selectee had training experience both as a Safety Manager and in other positions. Her KSAs detailed her training experience. The AJ noted that contrary to the Complainant's assertion, the Selectee had recent experience in training. The AJ concluded that Complainant did not prove that her non-selection was motivated by discrimination or retaliation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her training experience and education were observably far superior to the Selectee's. She additionally notes, among other things, that "[t]he AJ continues to refer to a climate assessment that was not only unfair but it was defamation of character and very subjective. The climate assessment was completed by a Caucasian female... who never supervised employees nor did she request information from management (African American females) during the climate assessment."
The Agency asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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. Next, 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). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Here, Complainant has established a prima facie case of race discrimination in that the Selectee is not in Complainant's protected group. We shall assume for the sake of argument that Complainant also established a prima facie case of retaliation. The Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, RMO stated that Complainant did not demonstrate the KSA's as well as the other two candidates. He stated that Complainant's application could have been better developed and presentated. RMO also indicated that during the interview process Complainant responded better than one candidate, but not as well as the Selectee. Therefore, once both the written applications and the interview responses were reviewed, the Selectee did better overall.
RMO further explained that the Selectee interviewed very well for the subject position. He stated that the Selectee has demonstrated knowledge of the subject matter and articulated this knowledge well in the interview and in her application. According to the RMO, she clearly demonstrated through the interview process that she had supervised both EAS and Craft in her current position. Moreover, the Selectee demonstrated through examples how process and programs relate to the Greater Michigan District. RMO further indicated that "[S]he is an intelligent, knowledgeable, articulate and effective manager."
Although Complainant believes that the Climate Assessment Report was a factor in her non-selection, the AJ however, found that this was not a material issue because, even if it was considered, this would not be persuasive evidence of pretext. The Commission finds that Complainant has not presented any persuasive evidence that the Climate Assessment Report was considered, other than her bare assertions, when the decision was made not to select her for the subject position. We find that this record contains no evidence that RMO's reasons are merely pretext for race-based discrimination or retaliation.
We also note that the Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that her qualifications were plainly superior to those of the Selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
In his comparative analysis of Complainant, the Selectee and the other candidate, RMO recognized that Complainant had an excellent background in Training as a craft employee. RMO noted however, that in comparison with the Selectee, Complainant simply did not express the same thorough knowledge that the Selectee did during the interview. See Report of Investigation, at Ex. 15. Given that training experience was not the only qualification for the subject position, we cannot conclude that Complainant's qualifications rose to the level of being plainly superior to those of the Selectee. We find that Complainant has not shown that her non-selection was related to her race or her prior EEO activity.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's decision without a hearing was appropriate, as no genuine issue of material fact is in dispute.2 See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
_8/27/10_________________
Date
1 The appeal of this matter is pending before the Commission, docketed under EEOC Appeal No. 0120092760.
2 In this case, we find that the record was adequately developed for the AJ to issue a decision without a hearing.
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0120102341
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102341