01a51124
05-04-2005
Karen T. King-Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Karen T. King-Ellis v. United States Postal Service
01A51124
May 4, 2005
.
Karen T. King-Ellis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01A51124
Agency No. 330-A3-8099X
Hearing No. 4G-770-0508-02
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that at the time of the alleged discrimination,
complainant, an Acting Manager at the agency's University Station
in Houston, Texas, filed a formal EEO complaint on October 4, 2002,
alleging that the agency discriminated against her on the basis of sex
(female) when she learned on August 26, 2002, that management had not
selected her for the position of Station Manager at the Sage Station.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following the hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of sex
discrimination because the person who was selected to the position was
male and therefore not in complainant's protected class. The AJ further
concluded that the agency articulated a legitimate, nondiscriminatory
reasons for its actions. The AJ found that a review board consisting of
one male and two female supervisors recommended four applicants to the
area manager/selecting official, also a female.<0> The AJ determined that
all four applicants had extensive experience as supervisors and acting
managers and that all received the same instructions for the interview.
However, in addition to his experience in Operations and his expertise
managing VIM rooms, the selectee, according to the selecting official,
had had an exceptional interview due to his �great communication skills.�
AJ Decision at 4. Complainant had a good interview, but the selecting
official noted that she needed to work on her communication skills. Id.;
see also Memorandum of Comparative Analysis, dated 8/19/02, attached
as Exh. 4. Ultimately, the hiring decision turned on the applicants'
communication ability as the Sage Station is one of the busiest offices
in the area, and they needed a person who could communicate well with
customers as well as employees. Id. at 5 (citing Hearing Tr. 185).
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant �failed to provide any evidence other than bare allegations�
of discrimination. Id. at 7. By not offering any evidence that the
non-selection was based on her sex, complainant could not meet her burden
of proof. The agency's final order, dated October 4, 2004, implemented
the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Complainant takes particular issue with the fact that the selecting
official found complainant's communication skills to be inadequate.
Complainant argues that the AJ erred in accepting this as the agency's
legitimate, non-discriminatory reason for not selecting complainant
to the position. She questions how the selectee, who had been only a
carrier for most of his postal service career, could be deemed to have
better skills than she, when she used her communication skills to train
other postal employees in a Learning Through Discussions class that
she taught while on detail with the National Management Association.
See Appeal Statement at 3. Furthermore, complainant points out that
the selecting official's decision to add a fourth applicant to her list
of potential candidates, when that fourth applicant turned out to be the
selectee and when none of the review board members knew that he was added,
is an �obvious discriminatory act.� Id.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.� Universal Camera Corp. v. Nat'l Labor Relations
Bd., 340 U.S. 474, 477 (1951 (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision properly referenced the appropriate regulations,
policies, and laws. Applying the substantial evidence review standard,
the Commission will give deference to an AJ's post-hearing factual
findings based on evidence in the record. EEO Management Directive 110,
as revised, Nov. 9, 1999 (MD-110), at 9-16. A credibility determination
of an AJ based on the demeanor or tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts
the testimony of the witness or the testimony otherwise so lacks in
credibility that a reasonable fact-finder would not credit it. See id.
We further note that the agency generally has broad discretion to
set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. See Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request
No. 05940906 (Jan. 16, 1997); Kohlmeyer v. Dep't of the Air Force,
EEOC Request No. 05960038 (Aug. 8, 1996). The EEOC does not have the
authority nor the capacity to stand as the super-personnel department
for the Postal Service. Personnel decisions which are idiosyncratic
or suspect, however, are subjected to heightened scrutiny. See Loeb
v. Textron Corp., 600 F.2d 1003, 1012, n.6 (1st Cir. 1979). Deviations
from standard procedures without explanation or justification are
sufficient to support an inference of pretext. See Hovey v. Dep't of
Hous. & Urban Dev., EEOC Appeal No. 01973965, (Aug. 31, 2000); Monroe
v. Dep't of the Navy, EEOC Request No. 05950248 (Aug. 8, 1996); Craig
v. Y&Y Snacks, Inc., 721 F.2d 77, 80 (3rd Cir. 1983).
We find no evidence that the selecting official's decision not to
select complainant is idiosyncratic or suspect. Therefore, we will not
second-guess it. We find it perfectly reasonable and not unusual that
the agency would want a station manager with exceptional communication
skills, particularly where the manager is to oversee a very busy office
and is to have much contact with both customers and employees.
As for complainant's argument on appeal that the selecting official's
request to add a fourth person to the list of candidates for a final
interview was an �obvious discriminatory act,� when that fourth candidate
ultimately became the selectee, we find nothing obviously discriminatory
in that decision. In fact, the evidence on the record shows that the
selecting official did not know who that fourth person would be. As such,
complainant has failed to prove through substantial evidence that the
decision was discriminatory. The agency's final order is hereby AFFIRMED.
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
May 4, 2005
__________________
Date
0 1The facts show that the review board initially recommended three
applicants to the selecting official: complainant and two other males.
For reasons not elaborated on the record, the selecting official
requested that an additional applicant be referred to her. This other
applicant was also male and he ultimately obtained the job.