0120141196
05-21-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120141196
Agency No. 4E-800-0071-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 23, 2013 final decision concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster at the Agency's Towaoc, Colorado Post Office.
On May 28, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jehovah's Witness), age (over 40), and in reprisal for prior EEO activity when1:
1. on January 25, 2013, he was not selected for the position of Postmaster at the Monte Vista, Colorado Post Office; and
2. on June 11, 2013, he was notified that he was not selected for the EAS-17 position of Supervisory, Customer Services, (2310-0022), at the Cortez, Colorado Post Office.2
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 23, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex, religion, age and reprisal discrimination. The Agency further found that, assuming for the sake of argument only, Complainant established a prima facie case of sex, religion, age and reprisal discrimination, Agency management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not prove were a pretext.
Complainant, on appeal, argues in regard to claim 1, that the Agency "failed to provide me with a complete copy of the investigation record. To be more specific the agency failed to provide me with the 'Structured Application Review Guide.'...the agency failed to get approval or at least request approval from Resource Management to provide me with a copy of the guide." Complainant further argues that the job announcement for the Monte Vista Postmaster position was canceled "in order to prevent me from being promoted."
Regarding claim 2, Complainant argues that while the Agency claimed that he was not qualified for the Supervisory, Customer Services position "I think a review of the ratings system is necessary to show that there were deficiencies in the process. After a review of my actual qualifications compared to [the selectee's] misleading and false statements of her qualifications, you can see that I am better qualified for the position. It is very difficult for me to show that the agency didn't rate my application properly when they have failed to provide me with a complete Investigation Report."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Manager, Post Office Operations, also Complainant's supervisor, stated that in regard to claim 1, he was the selecting official for the Monte Vista Postmaster position. The Manager stated that there was no review panel established for the subject position and that he was the sole person to make the selection. The record reflects that four applicants, including Complainant, applied for the subject position. The Manager stated that he selected a female applicant for the subject position because she was best qualified, but that she declined to accept the offer.
Further, the Manager stated "no one ended up being selected, and the job was reposted. The complainant needed to reapply if he wanted to be considered. He did not reapply." The Manager stated that while the subject position was reposted, he decided to accept a request for a non-competitive downgrade from the Postmaster of the Agency's Decatur, Tennessee Post Office and awarded the subject position to that Postmaster. The Manager stated that he did not select Complainant for the subject position because he "failed to demonstrate during his interview his ability to become the level 18 Postmaster of Monte Vista [Colorado]." Finally, the Manager stated that he did not discriminate against Complainant based on his sex, religion, age and prior protected activity.
Regarding claim 2, the Postmaster of the Cortez, Colorado Post Office stated that during the relevant time he was the selecting official (selecting official) for the Supervisory, Customer Services position. The selecting official stated that he wanted an impartial Postmaster to review and rate the candidates so he would have another set of eyes score them. The selecting official further stated since there were less than 10 candidates, there was no need for a review committee so he asked the Postmaster of the Ignacio, Colorado Post Office to review and rate the applications. The selecting official stated "I felt that since [Complainant] was an applicant and had worked at the Cortez Post Office as a clerk and a supervisor previously, i[t] would be wise to have an impartial Postmaster review and rate all the applicants 991's. Another applicant, [female applicant] was on a supervisor detail in Cortez at the time of the posting. Again I felt it was important to have an impartial Postmaster review the 991's so the process would be fair to all applicants."
Further, the selecting official stated that he followed the Structured Application Review Guide in reviewing and rating the applications and that a minimum score of 8 was necessary in order to review an interview. The selecting official stated that both he and the Postmaster rated Complainant's application as a 6, which was not high enough to warrant an interview. The selecting official stated that two named female candidates were considered to be finalists for the subject position and that when he spoke to the Human Resources Generalist (HR Generalist), he found out that both of them had already accepted positions elsewhere in the Postal Service. The selecting official stated that the HR Generalist informed the selecting official that the two finalists "could still accept the position in Cortez and withdraw their names from the jobs they had accepted. She instructed me to interview both candidates so that I could choose the candidate I wanted to hire in Cortez. This would allow the candidate not chosen to proceed with the job they had accepted. I asked her if I should interview anyone else and she stated that the other candidates did not qualify for an interview. This included [Complainant] and [female candidate]."
The selecting official stated that on June 11, 2013, Complainant stopped by the Cortez Post Office and informed him that he had been notified that he did not receive an interview for the subject position and "I explained to [Complainant] that although I was not required to, that I had another Postmaster review and rate the 991's I had received for the position. I explained to [Complainant] the scoring system and I informed [Complainant] that his 991 did not rate high enough to grant him an interview. I told [Complainant] his 991 needed some work. He said 'OK,' and then asked me if I would help him with his 991. I told him when things slowed down, that I would help him improve his 991 so he would have a better chance at being selected fur future interviews."
The selecting official stated that during the relevant period he was not aware of Complainant's prior protected activity. Moreover, the selecting official stated that he did not discriminate against Complainant based on his sex, religion, age and prior protected activity.
We note that Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not providing him a copy of the Structured Application Review Guide. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 21, 2014
__________________
Date
1 For ease of reference, the Commission has numbered Complainant's claims as claims 1-2.
2 The record reflects that claim 2 and the reprisal basis were later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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