Charles L. Phipps, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2004
05A41013 (E.E.O.C. Sep. 28, 2004)

05A41013

09-28-2004

Charles L. Phipps, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Charles L. Phipps v. United States Postal Service

05A41013

September 28, 2004

.

Charles L. Phipps,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A41013

Appeal No. 01A33793

Agency No. 4C-270-0087-02

DECISION ON REQUEST FOR RECONSIDERATION

Charles L. Phipps (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider the

decision in Charles L. Phipps v. United States Postal Service, EEOC Appeal

No. 01A33793 (June 2, 2004). EEOC regulations provide that the Commission

may, in its discretion, reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In his request, complainant advised that he had been provided with

incorrect information regarding the basis for the Commission's decision

on appeal. While complainant's request appears not to meet either of

the criteria for reconsideration, the Commission reopens the case on

its own motion to ensure that complainant is accurately provided with

the basis for the appeal decision.

Complainant, then a Mailhandler, PTF-4, at the agency's Hickory, North

Carolina Processing and Distribution Center, filed a complaint alleging

that the agency had discriminated against him based on sex (male) when,

on January 20, 2002, he was not selected for the position of Postmaster,

EAS-15, Union Grove, North Carolina. Complainant did not elect between

a hearing and an immediate final agency decision (FAD). The agency

therefore proceeded to issue a FAD, in which it found no discrimination.

The record reflects that complainant was one of six applicants (three

male, three female) referred for interviews. A female applicant was

selected.

In any proceeding, either administrative or judicial, involving an

allegation of discrimination, it is the burden of the complainant to

initially establish that there is some substance to his or her allegation.

In order to accomplish this burden the complainant must establish a

prima facie case of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,

438 U.S. 567, 576 (1978). This means that the complainant must present

a body of evidence such that, were it not rebutted, the trier of fact

could conclude that unlawful discrimination did occur. The burden then

shifts to the agency to articulate a legitimate, non-discriminatory

explanation for its action. Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). In this regard, the agency need only produce

evidence sufficient �to allow the trier of fact rationally to conclude�

that the agency's action was not based on unlawful discrimination.

Id. at 257. Once the agency has articulated such a reason, the question

becomes whether the proffered explanation was the true reason for the

agency's action, or merely a pretext for discrimination. St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden

of production, in other words, �going forward,� may shift, the burden

of persuasion, by a preponderance of the evidence, remains at all times

on the complainant. Burdine, 450 U.S. at 256.

Here, complainant established a prima facie case of sex discrimination by

showing that he applied and was qualified for the Postmaster position, but

was non-selected in favor of a female applicant. The agency, however, met

its burden of explanation by explaining in what regard the selectee was

better qualified than complainant. The agency referenced the selectee's

application and her interview performance, which showed that she had

served as Officer in Charge of the Union Grove Post Office; that she

had the widest range of knowledge of postal operations of the applicants

interviewed, particularly with regard to financial issues; that she had

taken numerous courses to prepare for advancement; and that she had been

exposed to a variety of operational issues in her current assignment. The

selectee was described as able to answer all interview questions in such

a way as to demonstrate a greater depth of knowledge of postal operations

than was complainant. By contrast, despite three assignments as Officer

in Charge, complainant was unfamiliar with the matters he was questioned

about, and seemed to the interviewer to not be well-prepared.

Complainant has not met his burden to show that the agency's explanation

was a pretext for discrimination. Complainant has not demonstrated that

his qualifications were patently superior to those of the selectee.

See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Further,

the agency is free to select from among equally desirable candidates.

See Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).

Neither has complainant adduced any other evidence of sex-based

discriminatory animus.

On appeal, complainant argued that the agency had failed to provide him

with certain statistical information bearing on work-force composition

generally and another selection action, but complainant failed to

explain how this information was relevant or material to his claim.

Accordingly, the Commission finds that complainant has not established

his claim of sex discrimination. It is noted that because this is the

first time that complainant has been properly advised of the basis for

the Commission's decision on appeal, complainant will again be afforded

the right to request reconsideration.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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

September 28, 2004

__________________

Date