0120102904
02-03-2011
Calvin S. Richardson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Calvin S. Richardson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120102904
Hearing No. 410-2007-00236X
Agency No. 4H-000-0002-07
DECISION
On June 26, 2010, Complainant filed an appeal from the Agency's May 24,
2010, final order 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. The Commission accepts the
appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated
against on the bases of race, and color, when on November 4, 2006, he
was not selected for the Southeast Area Leadership Development Program
(SEALDP).1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Postmaster, EAS-24 at the Agency's Decatur, Post Office in Georgia.
In 2005, Complainant submitted an on-line application for a developmental
training position in the SEALDP. Fifty-one management personnel
applied to participate in the SEALDP. A selection panel composed of
personnel specialist and upper management officials selected twenty-eight
candidates. The selection panel did not select Complainant as one of the
candidates because concerns were expressed regarding the Complainant's
job performance and the poor performance of the Decatur office.
In September 2006, the Agency issued Complainant a letter informing him
that he was not selected to participate in the program. Complainant
indicated that he had never received the Agency's letter and claimed
that he learned of his nonselection in November 2006, after he contacted
the District Manager-Diversity Development, and was told that he had
not been selected. Complainant maintained that nine applicants applied
for placement into the SEALDP at the EAS-25 level. However, no African
American applicants were selected. African American candidates were
selected at lower EAS levels, but not at the EAS-25 level. Therefore,
on December 4, 2006, Complainant filed an EEO complaint alleging among
other things that the Agency discriminated against him on the bases of
race (African-American), sex (male), color (Black), and age (53) when
he was not selected for the SEALDP program.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on June 18,
2010, August 10, 2009 and September 25, 2009, and issued a decision on
March 10, 2010. The AJ found that while Complainant created a prima
facie case of race and color discrimination, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the selection panel members explained that at the time of applicant
selection, the Decatur post office was not performing well enough to
warrant selecting Complainant for the SEALDP program. The AJ found
that while the Decatur office was highly ranked and Complainant had
received a high performance evaluation in 2005, the Agency's testimony
regarding the facilities performance at the time of the selection,
was credible. The AJ indicated that Complainant's acting supervisor for
part of the time at issue had questioned Complainant's job performance
and the performance of the Decatur office. The AJ found that, other
than Complainant's subjective belief that there was racial animus
in the Agency, he did not provide any evidence which showed that the
nondiscriminatory reasons given by the Agency were a pretext to hide
discriminatory animus. The Agency subsequently issued a final order
adopting the AJ's finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there are many unresolved issues
regarding who participated on the selection committee and their level of
participation. Complainant notes however, that no African Americans were
on the selection committee. Further he maintains that many inconsistent
statements were made by management during the entire process. Therefore,
Complainant argues the AJ should have held the Agency to a heightened
level of scrutiny. Moreover, Complainant asserts that he was more
qualified than the selectees. He contends that an ineligible Caucasian
employee was selected for the program which was in violation of the
Agency's own policies and procedures. Complainant also contends that
he demonstrated during the hearing that the Agency had no evidence to
support its contention that he was a poor performer. Additionally,
contrary to management's testimony, Complainant maintains that at least
two Selectees received higher level detail assignments shortly after
having participated in the SEALDP.
STANDARD OF REVIEW
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9,
1999).
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, he must first establish a prima
facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once Complainant has established a prima facie
case, the burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is
successful, the burden reverts back to the Complainant to demonstrate
by a preponderance of the evidence that the Agency's reason(s) for its
action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Upon review of this decision, the Commission has determined that there
is substantial evidence in the record to uphold the finding of no
discrimination. Specifically, like the AJ we find that Complainant
established a prima facie case of race and color discrimination.
The burden then shifted to the Agency to articulate legitimate,
nondiscriminatory reasons for its actions. The Agency maintained
that during the selection process, the selection panel discussed the
poor performance of the Decatur facility at that time. Based on that
discussion it was determined that Complainant's performance did not
warrant recommendation because the Decatur facility was routinely listed
on performance reports as a poorly performing office. The panel therefore
made a consensus decision not to select Complainant to participate in
the SEALDP.
To show pretext, Complainant contends that there were many problems
regarding the lack of specificity with the selection process. He also
maintains the Agency provided no evidence to support its contention that
he was experiencing problems at his facility. Moreover, Complainant
asserts that he was more qualified for selection to participate in SEALDP
than the Selectees.
The Commission finds that, while it was acknowledged that Complainant
received an outstanding rating and that his facility had also been rated
very high, there is substantial evidence in the record to support the
AJ's determination that Complainant was not selected to participate
in the program because, at the time the selection was made, there
were concerns about Complainant's job performance and that of the
Decatur facility. Further, the Commission finds that Complainant has
not demonstrated that any candidate was selected for the program whose
facility was routinely listed as a poor performing office. Finally, with
respect to Complainant's allegation that the Selectees received higher
level detail assignments because of their involvement in this program,
the Commission finds that this issue is not relevant to the finding in
this case because the evidence does not show that discriminatory animus
was involved with regard to his nonselection. Accordingly, we find that
Complainant failed to show that the Agency's articulated legitimate,
nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the AJ's
findings of fact are supported by substantial evidence in the record.
We find no reason to disturb the AJ's decision, and we hereby AFFIRM
the Agency's final order.
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
___2/3/11_______________
Date
1 Initially, Complainant's complaint included a claim of sex and age
discrimination, but he withdrew these bases.
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0120102904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102904