0120141096
02-05-2015
Complainant, Complainant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Complainant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120141096
Hearing No. 430-2013-00257X
Agency No. 4K-290-0063-12
DECISION
On January 14, 2014, Complainant filed an appeal from the Agency's December 6, 2013 final order concerning her 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. Our review is de novo. For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the complaint for a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-15, at the Agency's Post Office in Una, South Carolina. On October 11, 2012, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of her race (African-American) when she was not selected for the position of Postmaster for the Drayton, South Carolina Post Office. Complainant also claimed race discrimination and reprisal for her prior protected EEO activity when she was not selected for nine other Postmaster positions for which she applied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's Motion for Summary Judgment and issued a decision on November 26, 2013.
The AJ found that no discrimination occurred with regard to each of the claims. With respect to the Drayton position, Complainant applied for the position of Postmaster, EAS-18 on or about May 25, 2012. Complainant was interviewed by the selecting official, the Operations Manager and Complainant's immediate supervisor, in early June 2012. According to the selecting official, there were several available Postmaster positions and several applicants applying for multiple positions, and thus he chose to conduct one set of interviews. The selecting official explained that he compiled a list of qualified candidates based upon interview performance and filled the positions based upon this pool of candidates. The selecting official stated that he conducted 35 interviews for nine Postmaster positions.
The AJ stated that on or about July 9, 2012, Complainant learned that she had not been selected for the Postmaster position in Drayton and that the successful candidate was Caucasian. According to the AJ, the selecting official responded to Complainant's inquiry about why she was not selected by pointing out to her that she missed several key questions regarding particular skills required to operate higher level facilities. The selecting official claimed that he provided Complainant with tips of how to improve her performance for future interviews, and he informed her that he would place her in an OIC position at a higher level facility once he located an OIC for her current position.
The AJ stated that the 9 selectees included four Caucasian females, two African-American females, two Caucasian males and one Hispanic male. The AJ found that Complainant's claim of race discrimination was vitiated by the fact that two African-Americans were selected and found that Complainant failed to establish a prima facie case of race discrimination. With regard to Complainant's claim of reprisal, the AJ observed that Complainant was claiming that her nonselections were attributable to the instant complaint. The AJ stated that the interviews occurred in June 2012, the Drayton selection occurred on June 26, 2012, and Complainant initiated EEO activity on July 10, 2012. The AJ found that Complainant failed to establish a prima facie case of reprisal, reasoning that the selecting official had conducted interviews and excluded Complainant from the pool of eligible candidates by the time the protected activity was initiated.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In the context of an administrative proceeding, an AJ may properly consider granting summary judgment only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
After careful review, we conclude that the record contains insufficient evidence to support the AJ's grant of summary judgment. We disagree with the AJ's finding that Complainant failed to establish a prima facie case of race discrimination. The AJ based this finding on the fact that two African-Americans were selected for the Postmaster positions. However, the fact that two candidates from Complainant's protected group were among the nine selectees does not mean that Complainant failed to establish a prima facie case of race discrimination for seven of the other positions. Drawing justifiable inferences in Complainant's favor, we conclude that a reasonable fact finder could have concluded that Complainant established a prima facie case of race discrimination.
We further conclude that the record lacks the following: vacancy announcements, applications of the comparison employees, interview questions, and scores for candidates other than Complainant. In addition, the selecting official did not provide a response when asked to compare, for the Drayton position, the successful candidate's skills and experience with Complainant's skills and experience. Thus there is little to no evidence to support the selecting official's claim that Complainant missed several key questions regarding the particular skills required to operate higher level facilities.
For these reasons, we find that the selecting official's credibility is critical to determining whether selections for the Postmaster positions were unlawfully motivated. We find that a hearing is warranted so that the merits of this matter can be properly addressed.
CONCLUSION
After a careful review of the record, the Commission REVERSES the Agency's final order and REMANDS the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Charlotte District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
February 5, 2015
__________________
Date
2
0120141096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013