0120080230
04-30-2009
Charles R. Nylund, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Charles R. Nylund,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120080230
Agency No. 4E-590-0013-04
DECISION
On October 17, 2007, complainant filed an appeal from the agency's October
1, 2007 final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Manager, Maintenance at the Great Falls, Montana Post Office.
On April 7, 2004, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of age (54) when he was not selected
for the position of Maintenance Manager, Butte, Montana.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision (FAD1) pursuant to 29
C.F.R. � 1614.110(b), on March 15, 2005. FAD1 found that complainant had
established a prima facie case of age discrimination but that the agency
had articulated a legitimate, non-discriminatory reason for the selection,
which had not been shown to be a pretext for prohibited discrimination.
Complainant appealed FAD1 to the Commission.
The Commission issued its decision in Nylund v. United States
Postal Serv., EEOC Appeal No. 0120073750 (July 10, 2007), vacating
FAD1 because the investigative record was inadequate and ordering a
supplemental investigation. Specifically, the Commission found that
the record lacked documentation to support the Postmaster's evaluation.
Specifically, it did not contain the interview questions; whether both
applicants were asked the same questions; or the Postmaster's notes on
the applicant responses. In addition, we held that the Postmaster did
not explain why he conducted the interview alone; under what authority
he added requirements to the vacancy announcement; and his justification
for his scoring of the interviews. Additionally, the investigative report
failed to pursue evidence presented by the statement of another employee,
which was attached to the complainant's affidavit.1
The agency completed the supplemental investigation and issued a new
FAD (FAD2) on October 1, 2007. FAD2 initially noted that complainant's
complaint included two additional allegations. However, on May 10, 2004,
these allegations were correctly dismissed as untimely.2 FAD2 then
found the following as to the nonselection: Complainant established
a prima facie case of age discrimination by virtue of the fact that,
at 54 years of age, he was within the protected age group. Complainant
applied for the position of Maintenance Manager at the Butte, Montana
Post Office under Vacancy Announcement Number FY03054, and was rated
sufficiently favorably as to merit an interview. After his interview,
he was notified that he was not selected for the position; instead,
an individual not in his protected group (age 33) was selected.
FAD2 found (considering both investigative reports) that the agency
articulated a legitimate, nondiscriminatory explanation for its actions.
Specifically, the Postmaster testified that he did not recall having made
the alleged comment about not wanting to put someone in the position
who only had a few years to go, or having said anything similar.
He indicated he relied upon several items of guidance when making the
selection decision relative to the Maintenance Manager position, including
Handbook EL-312.74, Handbook EL- 350, and the web-based training Course
Number 21553-00, available on the Postal Service Intranet.
The Postmaster elaborated on his reasons for adding the three additional
requirements that were not on the vacancy announcement. He testified that
they were added to help him evaluate the interview process similar to how
the KSA's were used to evaluate the application process. He maintained
that he added the requirements to help him assign a point value to the
interviews, noting there were no specific instructions on how to "weight"
the interview process.
The Postmaster explained that in referring to "growth potential" on
his prior affidavit as an important selection criterion, it had been
his experience that employees who tried to improve their skill sets,
increase their knowledge base, and expand their experiences generally
performed better in their current positions. In scoring complainant
with a total of 96 points and the selectee with 113 points, he rated
both applicants on their responses to the job requirements based on
Relevance to the job; Degree of Personal Responsibility; Complexity of
the work; Positive feedback indicated; Breadth of demonstration; and
Recency, using a 0-3 point scale. He gave complainant a score of zero
on the job requirement of Personal Development and Flexibility because
he had not cross-trained or detailed to any other functional area.
He explained that in that size facility, all managers had to be able to
step into another position for emergency purposes. He indicated that
they did not have a large cadre of acting supervisors to pull from.
Furthermore, all supervisors benefit from understanding the impact
their operations have on other functional areas. The Postmaster further
stated that he conducted the interview alone because a review committee
is only established if there are five or more applicants for a position.
The Postmaster further noted that since the selection in question, he had
selected complainant for a supervisory position at a higher level than
this one, and after a year in the position complainant had requested
a downgrade to the position at issue in this case, which he granted.
FAD2 found that complainant set forth no persuasive evidence that the
agency's reasons are merely pretext for age-based discriminatory animus.
FAD2 found no discrimination.
On appeal, complainant raises no new arguments. In response, the agency
requests that the Commission affirm the FAD. As this is an appeal from
a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, �
VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
Here, complainant established a prima facie case of discrimination on
the basis of age. Additionally, the agency has articulated legitimate,
nondiscriminatory reasons for its actions, as detailed in FAD2 above.
Complainant has not persuaded this Commission, by a preponderance of
the evidence, that but for his age he would have been selected for
the position at hand. We note that we do not have the benefit of an
Administrative Judge's findings after a hearing, and therefore, we can
only evaluate the facts based on the weight of the evidence presented
to us. Based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
FAD2.
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
April 30, 2009
__________________
Date
1 That employee stated that the Postmaster had commented to him that
he was not sure he wanted to put someone in the Manager, Maintenance
position that only had a few years to go.
2 In EEOC Appeal No. 0120053750, the Commission affirmed the dismissal
of these claims.
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0120080230
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013