01A14063
11-04-2002
Blanche Evans, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Blanche Evans v. United States Postal Service (Capital-Metro Area)
01A14063
November 4, 2002
.
Blanche Evans,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A14063
Agency No. 4K-210-0121-97
Hearing No. 120-98-9703X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 Postal Systems Coordinator,
EAS-19, at the agency's Baltimore, Maryland facility, filed a formal
EEO complaint on July 25, 1997, alleging that the agency discriminated
against her on the bases of race (Black), sex (female), age (D.O.B. March
20, 1942), and reprisal for prior EEO activity when on July 5, 1997,
she was not selected for either of two vacant positions of Budget
and Finance Analyst, EAS-19. 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 assuming, arguendo, complainant established a
prima facie case of discrimination on all alleged bases, the agency
nonetheless articulated legitimate, non-discriminatory reasons for not
selecting complainant for either of the positions at issue. Specifically,
the AJ found that the selecting official (SO) stated that both selectees
performed very well in the interview and were well prepared, appeared
enthusiastic about the position, and had recent and relevant experience.
In contrast, the AJ found that complainant gave a poor interview,
was not well prepared, and seemed unenthusiastic about the position.
The AJ further found that despite her excellent record, complainant
failed to show that her qualifications were plainly superior to those of
the selectees. The AJ concluded that complainant failed to show that
the agency's legitimate, nondiscriminatory reasons for not selecting
complainant were mere pretext for discriminatory or retaliatory animus.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that AJ erred in finding no
discrimination, and asserts that the AJ's decision contained
inconsistencies, errors, and inaccurate statements. Complainant
further contends that the AJ ignored testimony as to SO's prior alleged
discriminatory acts. Complainant also reiterates numerous arguments
previously made at the hearing. The agency requests that we affirm its
final order.
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.
In the case at hand, we agree with the AJ that the agency articulated
a legitimate, non-discriminatory reason for not selecting complainant;
namely, that complainant did not perform as well in her interview and did
not have the experience with Budget work that the selectees possessed.
Complainant claims that the selectees had more experience with budget
work because they had been given details to the Budget department.
Complainant contends that she was not offered any such detail despite
having requested one from SO in the past. (Hearing Transcript, page 27;
349-50). SO testified, however, that complainant had in fact been offered
a Budget detail in the past but had declined. (HT, page 237; 337-8).
While we have repeatedly recognized that, in non-selection cases, pretext
may be found where complainant's qualifications are demonstrably superior
to those of the selectee, Hickman v. Department of Justice, EEOC Appeal
No. 01A11797 (December 20, 2001) (citing Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981)), we have also recognized that an employer has the
discretion to choose among equally qualified candidates. Id. (citing
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981)).
Additionally, an employer has greater discretion when filling management
level or specialized positions. Id. (citing Wrenn v. Gould, 808 F.2d 493,
502 (6th Cir. 1987)). Complainant has not presented any persuasive
evidence to show that her qualifications were demonstrably superior
to that of the selectees, or that the agency's selection decision
is not entitled to the deference it is normally accorded in filling a
management-level position such as the ones at issue. We note that while
complainant presented several challenges to SO's statements with respect
to the awarding of budget details, she has presented insufficient evidence
to establish, by a preponderance of the evidence, that her non-selection
was based on discriminatory or retaliatory animus.
After a careful review of the record, the Commission finds that the AJ's
findings of fact following the hearing are supported by substantial
evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Therefore, after a review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
November 4, 2002
__________________
Date