Doreen Waggoner, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01996873 (E.E.O.C. Sep. 12, 2002)

01996873

09-12-2002

Doreen Waggoner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Doreen Waggoner v. United States Postal Service

01996873

September 12, 2002

.

Doreen Waggoner,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01996873

Agency No. 4H-335-0195-97

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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

appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged

that she was discriminated against on the bases of sex (female) and age

(45 at relevant time) when she was denied reassignment to the maintenance

craft.

The record reveals that during the relevant time, complainant was

employed as a Mark-up Clerk at the agency's Fort Myers, Florida facility.

On September 14, 1996, complainant requested a voluntary reassignment

to the maintenance craft in response to a general posting by the agency

indicating that such reassignments would be available. Over the next

few months several male employees were reassigned to the maintenance

craft but complainant was not. Believing herself to be a victim of

discrimination, complainant sought EEO counseling and subsequently filed

a formal complaint on June 12, 1997.

The agency accepted the complaint and conducted an investigation. At the

conclusion of the investigation, complainant was informed of her right to

request a hearing before an EEOC Administrative Judge or alternatively, to

receive a final decision by the agency. When complainant did not request

a hearing within the time period specified in 29 C.F.R. � 1614.108(f),

the agency issued a final decision.

In its FAD, the agency concluded that complainant had not proven either

sex or age-based discrimination. In pertinent part the FAD stated:

I find you have not borne the burden of proving a discriminatory

motive based on sex and age. I further find that even if you had

established a prima facie case, the [agency] articulated a legitimate,

nondiscriminatory reasons for its action; the best candidates were

hired to fill the positions. Records and testimony reflected there

were 11 position available for custodian in 1997, and 39 applicants.

The applicants included 33 males and 6 females, including you. Nine males

and 2 females were selected. Percentage-wise, more females were chosen;

therefore, sex certainly was not a factor. It is equally obvious that

age was also not a factor since 8 of the 11 selectees were over 40 years

of age, 3 of whom were older than you. You failed to offer any evidence

which would demonstrate that reason [sic] was a pretext for intentional

discrimination. [emphasis added]

From the FAD, complainant brings the instant appeal. On appeal, neither

party has raised any new contentions.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); and Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979) (requiring a showing that age was a determinative factor,

in the sense that "but for" age, complainant would not have been subject

to the adverse action at issue), we find that contrary to the agency's

conclusion that complainant failed to establish a prima facie case of

sex and age discrimination, complainant did establish a prima facie

case of discrimination on both of those bases because she demonstrated

that similarly situated persons outside her protected groups received

more favorable treatment than she. Specifically, the record shows the

several men and persons significantly younger than complainant were

reassigned to the maintenance craft while complainant was not.

Once a complainant has set forth a prima facie case, the burden

of production shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973). The agency may rebut

the presumption of discrimination by clearly setting forth, through

the introduction of admissible evidence, its reasons for not selecting

complainant. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 254-255 (1981).

The agency's explanation must be sufficiently clear to raise a "genuine

issue of fact" as to whether discrimination occurred. Burdine, 450

U.S. at 254. Moreover, it must "frame the factual issue with sufficient

clarity so that [complainant] will have a full and fair opportunity to

demonstrate pretext." Id. at 255-256; Parker v. United States Postal

Service, EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450

U.S. at 256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993), citing U.S. Postal Service Board of Governors v. Aikens, 460

U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256. While the agency's

burden of production is not onerous, it must nevertheless provide

a specific, clear, and individualized explanation for the treatment

accorded the affected employee. Lorenzo v. Department of Defense,

EEOC Request No. 05950931 (November 6, 1997).

Here, the agency's explanation for selecting others over complainant

is that the selectees were better qualified than complainant. This

explanation adds very little to complainant's knowledge about why she

was not selected for reassignment. Presumably, the agency always picks

the person it regards as the best qualified applicant for any position.

It could be argued that the agency's explanation for its actions is so

lacking in specifics that it has failed to rebut complainant's prima

facie case. However, complainant makes no such argument.

This is understandable in light of the fact that more specifics here

would not have helped complainant make her case.<1> In a non-selection

case, a complainant may prove the agency's explanation for its action

to be a pretext for discrimination by a showing that complainant's

qualifications were observably superior to those of the selectee.

See Williams v. Department of Education, EEOC Request No. 05970561

(August 6, 1998). However, here, complainant does not contend that she

is better qualified than those who were selected. She makes no mention

whatever of the relative qualifications of the selectees and herself.

Indeed, she makes this candid admission: �I do not claim that I was the

best candidate for the position of custodian.�

Rather, complainant seeks to prove her case by citing evidence that

she had been very active in union-related activities, including serving

as shop steward, to the great displeasure of the agency. Evidence of

anti-union animus on the part of the agency is not probative of the sex

and age-based discrimination complaintant has alleged in the matter before

us. Bell v. Small Business Administration, EEOC Request No. 05971046

(March 4, 1999).

Nor has complainant adduced any other evidence of discriminatory animus.

The agency, on the other hand, points out that it selected a greater

percentage of the female applicants for reassignment than male applicants.

This serves to undercut any claim of sex-based discrimination. Similarly,

with respect to complainant's age discrimination claim, the record shows

that most of the selectees were over the age of 40, three of whom were

older than complainant. We find that complainant has failed to prove

that the agency's explanation for complainant's non-selection was a

pretext designed to conceal intentional discrimination.

Therefore, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, the Commission

AFFIRMS the agency's final decision..

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 12, 2002

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1This presumably is why complainant did not request a hearing before

an EEOC Administrative Judge. Had she done so she would have had the

opportunity to conduct discovery and make detailed inquiry of the agency

concerning the specifics of the selectees' qualifications.