01A11252
06-07-2002
Ronald W. Jennings, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald W. Jennings v. United States Postal Service
01A11252
June 7, 2002
.
Ronald W. Jennings,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11252
Agency No. 1-G-771-0060-98
Hearing No. 330-99-8098X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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 complainant, a Mail Handler, PS-04, at the
Barbara Jordan Post Office, Houston, Texas, filed a formal EEO complaint
on May 12, 1998, alleging that the agency had discriminated against him
on the bases of race (Caucasian), national origin (Native American),
sex (male), color (White), and disability (back and neck injury) when:
(1) on January 5, 1998 he was notified that he did not meet the minimum
qualifications to be admitted into the Associate Supervisor Training
Program (ASP);
the 991 test was not administered and graded by an independent
contractor; and
the program coordinator refused to reveal his 991 test scores.
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 a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination because complainant did not show that he was
a qualified individual with a disability under the Rehabilitation Act.
The AJ also concluded that complainant failed to established a prima facie
case of race, color, sex or national origin. Specifically, regarding
claim (1) the AJ found that in order to qualify to be admitted into
the Associate Supervisor Training program, an applicant had to do the
following: (1) pass the math, reasoning, and writing test; (2) pass the
suitability test; (3) demonstrate in his/her 991 that he had met of the
KSO's; and (4) make an overall score of 80 or above after the interview.
The AJ found that complainant passed each level of scrutiny, but after the
interview, his overall score was 78.6. The AJ thus found that complainant
did not meet the qualifications to be admitted into the program.
Regarding claim (2) and (3), the AJ found that complainant failed to
show that any individual outside of his protected group was treated
differently under similar circumstances.
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 did not score high enough to be admitted into the program
and that every applicant was taken through the same procedure.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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. National Labor Relations Board, 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.
Disability
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
We will assume for purposes of the decision that complainant is a
qualified individual with a disability. However, we find that the agency
has established a legitimate nondiscriminatory reason for its action.
The record reveals that complainant was not selected to participate
in the ASP program because he did not have an overall score of 80 or
above. The testimony and record shows that complainant passed the math
and reasoning test which was graded by the National Test Administration
Center. The record also shows that complainant passed the writing test
which was graded by the five member Review Committee, and he was granted
an interview because he rated �minimal.� The record further reveals that
a person must pass all levels to be admitted into the program. The record
shows that once a person was granted an interview, all prior scores were
ignored and the person got an overall score based upon the interview.
The record also reveals that complainant's score was below the minimum
and therefore he was not admitted into the ASP program.
Regarding claims (2) and (3), we find that the record reveals that
management did not recall telling complainant that the test would be
administered and graded by an independent contractor. The record shows
that the National Test Administration Center graded the test for all
individuals. The record further shows applicants could find out their
test scores and interview performance by attending a call back session.
The record reveals that complainant did not respond to the call back
session.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Having considered
the evidence of record, the Commission finds that complainant has not
established pretext. Specifically, we note that complainant has not
demonstrated that he met the qualifications to be admitted into the
program nor that the procedure to reveal the test score was operated in
a discriminatory manner. Finally, we find that complainant failed to
show pretext. For example, he did not dispute that his overall score
was 78.6 or that to be admitted in the program all the applicants were
required to make an overall score of 80.
Disparate Treatment
Applying the standards set forth in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
concurs with the AJ's finding that complainant did not establish a prima
facie case of race, color, sex and national origin discrimination. There
is no evidence in the record of other similarly situated employees outside
of complainant's protected groups being admitted to the program with a
overall score below of 80. Nor is there any other evidence that would
support a finding that complainant had been discriminated against on
these bases.
CONCLUSION
In conclusion, after a careful review of the record, we find that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were
motivated by discriminatory animus toward his race, color, sex,
disability and national origin. We discern no basis to disturb the AJ's
decision. Therefore, we AFFIRM the agency's FAD.
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
June 7, 2002
__________________
Date