05A41013
09-28-2004
Charles L. Phipps, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles L. Phipps v. United States Postal Service
05A41013
September 28, 2004
.
Charles L. Phipps,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A41013
Appeal No. 01A33793
Agency No. 4C-270-0087-02
DECISION ON REQUEST FOR RECONSIDERATION
Charles L. Phipps (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Charles L. Phipps v. United States Postal Service, EEOC Appeal
No. 01A33793 (June 2, 2004). EEOC regulations provide that the Commission
may, in its discretion, reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In his request, complainant advised that he had been provided with
incorrect information regarding the basis for the Commission's decision
on appeal. While complainant's request appears not to meet either of
the criteria for reconsideration, the Commission reopens the case on
its own motion to ensure that complainant is accurately provided with
the basis for the appeal decision.
Complainant, then a Mailhandler, PTF-4, at the agency's Hickory, North
Carolina Processing and Distribution Center, filed a complaint alleging
that the agency had discriminated against him based on sex (male) when,
on January 20, 2002, he was not selected for the position of Postmaster,
EAS-15, Union Grove, North Carolina. Complainant did not elect between
a hearing and an immediate final agency decision (FAD). The agency
therefore proceeded to issue a FAD, in which it found no discrimination.
The record reflects that complainant was one of six applicants (three
male, three female) referred for interviews. A female applicant was
selected.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient �to allow the trier of fact rationally to conclude�
that the agency's action was not based on unlawful discrimination.
Id. at 257. Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden
of production, in other words, �going forward,� may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on the complainant. Burdine, 450 U.S. at 256.
Here, complainant established a prima facie case of sex discrimination by
showing that he applied and was qualified for the Postmaster position, but
was non-selected in favor of a female applicant. The agency, however, met
its burden of explanation by explaining in what regard the selectee was
better qualified than complainant. The agency referenced the selectee's
application and her interview performance, which showed that she had
served as Officer in Charge of the Union Grove Post Office; that she
had the widest range of knowledge of postal operations of the applicants
interviewed, particularly with regard to financial issues; that she had
taken numerous courses to prepare for advancement; and that she had been
exposed to a variety of operational issues in her current assignment. The
selectee was described as able to answer all interview questions in such
a way as to demonstrate a greater depth of knowledge of postal operations
than was complainant. By contrast, despite three assignments as Officer
in Charge, complainant was unfamiliar with the matters he was questioned
about, and seemed to the interviewer to not be well-prepared.
Complainant has not met his burden to show that the agency's explanation
was a pretext for discrimination. Complainant has not demonstrated that
his qualifications were patently superior to those of the selectee.
See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Further,
the agency is free to select from among equally desirable candidates.
See Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
Neither has complainant adduced any other evidence of sex-based
discriminatory animus.
On appeal, complainant argued that the agency had failed to provide him
with certain statistical information bearing on work-force composition
generally and another selection action, but complainant failed to
explain how this information was relevant or material to his claim.
Accordingly, the Commission finds that complainant has not established
his claim of sex discrimination. It is noted that because this is the
first time that complainant has been properly advised of the basis for
the Commission's decision on appeal, complainant will again be afforded
the right to request reconsideration.
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
September 28, 2004
__________________
Date