0120082083
08-27-2009
Charles E. May, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles E. May,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082083
Hearing No. 440-2007-00278X
Agency No. 4J-000-0002-07
DECISION
On March 31, 2008, complainant filed an appeal from the agency's March
4, 2008 final action concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
For the following reasons, the Commission AFFIRMS the agency's final
action.
At the time of events giving rise to this complaint, complainant worked
as a Manager, Maintenance, EAS-25, at the Chicago, Illinois Processing
and Distribution Center.
On May 8, 2007, complainant filed an EEO complaint wherein he claimed that
he was discriminated against on the basis of his race (African-American)
when on March 17, 2007, he was not selected for the position of Manager,
Maintenance Operations (PCES), Great Lakes Area.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but the AJ subsequently dismissed the request with prejudice
based on complainant's failure to comply with several provisions of the
Acknowledgment and Scheduling Order. The AJ remanded the complaint to
the agency and the agency issued a final action pursuant to 29 C.F.R. �
1614.110(b).
The agency determined that complainant failed to prove that he was
subjected to discrimination as alleged. According to the agency,
on August 22, 2006, a new Postal Career Executive Service (PCES)
01 position of Manager, Maintenance Operations (Area) was created.
The agency stated that in response to a request from the Area Manager,
Operations Support, the Manager, Maintenance Policies & Procedures at
agency headquarters provided the names of eight employees who were on the
current succession plans for Maintenance Policies & Logistics Planning
and/or Maintenance Technical Support Center. Three candidates from
this list were recommended for interviews by the former Area Manager,
Maintenance Support. Several other employees expressed interest in
being considered for the new position and four of these candidates were
interviewed. The individual selected for the position was a Caucasian
Maintenance Manager at the Indianapolis Processing & Distribution Center.
He had 34 years of experience with the agency. The agency determined that
complainant failed to establish a prima facie case of race discrimination.
The agency stated that complainant was not qualified for the position.
According to the selecting official, complainant's lack of qualifications
stemmed from his performance metrics in the Chicago Processing and
Distribution Center. The agency noted that the selecting official
stated that complainant had a history of poor findings in prior audits
and failure to adequately correct deficiencies from prior reviews.
The selecting official further stated that agency headquarters' had
previously cited Chicago's maintenance center for hazardous conditions
and that these issues were regularly left unresolved. The agency cited
these factors as part of its determination that it articulated legitimate,
nondiscriminatory reasons for complainant's nonselection.
The agency observed that complainant claimed pretext by virtue of the fact
that the agency failed to follow the Corporate Guidelines for Succession
Planning. The agency stated that its actions were in compliance with
its regulations. According to the Great Lakes Area Vice President,
a corporate succession plan was not established for the position
due to the fact that the position was upgraded to executive status.
The agency noted that complainant claimed that he had been treated
improperly when he was not detailed to an Area Maintenance position.
However, the selecting official stated that to the best of her knowledge
complainant had not asked to be detailed to such a position and in
contrast to complainant's claim, the selectee had not been detailed
to an Area Maintenance position prior to his selection. Moreover, the
selecting official stated that complainant would not have been detailed
because he had much improvement to accomplish in his current position.
Thereafter, complainant filed the instant appeal.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of race discrimination. We find that the
agency articulated legitimate, nondiscriminatory reasons for complainant's
nonselection. The record indicates that the selectee possessed relevant
skills for the position in several areas. According to the selecting
official, the selectee demonstrated during his interview his technical
knowledge and how he was able to drive performance at his facility and
within his cluster. The selecting official stated that his approach with
operations was very proactive and he took responsibility for operational
performance. Further, the selectee was described as being a data driven
analytical thinker, with a team approach to maintenance management.
Moreover, the agency stated that complainant lacked the necessary
qualifications for the position based on deficiencies in the Chicago
facility. The agency cited the fact that complainant had a history of
poor findings in prior audits, failure to adequately correct deficiencies
from previous reviews, and the Chicago maintenance center had been cited
for hazardous conditions that were frequently left unresolved.
Upon review of the record, we find that complainant has not established
that the agency's reasons for his nonselection were pretext intended to
mask discriminatory motivation. Complainant has not shown that he was
discriminated against because of his race when he was not selected for
the position.
The agency's final action finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 27, 2009
__________________
Date
2
0120082083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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