01993444
10-12-2001
Diane Komeshak, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diane Komeshak v. U.S. Postal Service
01993444
10-12-01
.
Diane Komeshak,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993444
Agency No. 4G-752-0192-98
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) pertaining to her complaint of unlawful employment
discrimination on the basis of age (over 40 years of age) in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. For the reasons stated herein, the agency's
FAD is affirmed.
According to the record, complainant was employed as an EAS-15, Account
Representative at a Texas facility of the agency. From March through
September 1997, complainant served on a temporary detail as an EAS-15,
Business Service Network Coordinator for the Southwest area. Complainant,
shortly after completing her detail, applied for two positions in
the Southwest area for which the agency did not select her � EAS-17
Business Service Network Specialist and EAS-21 Managed Account Specialist.
The selecting official (SO) stated that the candidates she did select were
better qualified for the vacant positions than complainant. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed an EEO complaint.
The agency issued a FAD finding no discrimination based on age.
Specifically, the agency found that complainant established a prima
facie case of discrimination but failed to present evidence that showed
that the agency's articulated reasons for its actions were a pretext
for discrimination. This appeal followed.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reasons articulated by the agency are merely pretext
for its discrimination. Id. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its actions, i.e., the selectees were better qualified than complainant,
we may proceed directly to determining whether complainant satisfied
her burden for showing pretext. Haas v. Department of Commerce, EEOC
Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service Board
v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this in one
of two ways, either directly, by showing that a discriminatory reason
more likely motivated the agency, or indirectly, by showing that the
agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The Commission finds that complainant did not show that the legitimate,
nondiscriminatory reasons articulated by the agency were pretextual.
Regarding the Business Service Network Specialist position, the SO
indicated that the selectee has extensive experience with specific
customers, a background that is beneficial to delivery service problems,
a greater ability to provide operational and procedural guidance for
problem resolution, and better people skills. With respect to the Managed
Account Specialist position, the SO indicated that the selectee possesses
greater account management experience, greater accomplishments in the
sales area, and greater customer service experience. In addition, the
SO stated that, during complainant's detail, there were problems on her
team involving her ability to work well with others.
The record is void of objective evidence which would suggest that
complainant was the best qualified candidate for either of the vacant
positions. �It is not the function of this Commission to substitute
its judgment for that of a selecting official familiar with the present
and future needs of his [or her] facility and therefore in a better
position to judge the respective merits of each candidate . . . unless
other facts suggest that proscribed considerations entered into the
decision making process.� Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996)(citing Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981); Jenkins v. Department of Interior,
EEOC Request 05940284 (March 3, 1995)). Accordingly, the complainant
has failed to prove discrimination based on age. We AFFIRM the agency's
finding of no discrimination.
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
____10-12-01______________
Date