01A14994
01-09-2003
Earnest James, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Earnest James v. United States Postal Service
01A14994
January 9, 2003
.
Earnest James,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A14994
Agency No. 4C-164-0067-99
Hearing No. 170-AO-8374X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
Complainant filed a formal EEO complaint on October 14, 1999, alleging
that the agency had discriminated against him on the basis of race
(African-American) when he was not selected for the Diversity Development
Specialist position.
Complainant, a Human Resources Specialist, Level 19, at the agency's
Cleveland District facility in Ohio, applied for the Diversity Development
Specialist position advertised under Vacancy Announcement Number 99-45.
The agency's District Manager (SO1: White male) interviewed four employees
(three Black applicants and one White applicant). The agency's Senior
Diversity Coordinator (race not specified) and the National Account
Representative (S1: Black female) were also present during the interviews.
SO1 asked each candidate the same question and at the conclusion of the
interviews he wrote a comparative analysis of the candidates and sent
his selection to the Area Vice-President for his concurrence. The record
reflects that the selectee (CW1: White female) was chosen based primarily
on the interview, and that her responses regarding her knowledge, skills,
and abilities, as identified by the vacancy announcement were also taken
into account.
SO1 contends that he did not choose complainant because he failed to
adequately address questions during the interview. SO1 and S1 both
testified that complainant's responses to questions were neither focused
nor tailored to the position for which he was applying. In fact, the
record shows that neither supported his candidacy for the position.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The AJ concluded that complainant established a prima
facie case of race discrimination because he applied, and was qualified,
for the position, and the person selected for the position was a White
female.
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that, although
complainant asserted that he had more EEO-related experience than the
selectee, they had both been employed by the agency for more than ten
years. The AJ also determined that CW1 was qualified for the position
as evidenced by her application and the agency was free to choose from
qualified candidates. The AJ found no evidence to support complainant's
contention that the agency's emphasis on interview performance was based
on race. The AJ further concluded that complainant did not establish
that more likely than not, the agency's articulated reasons were a
pretext to mask unlawful discriminatory animus.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the AJ erred when
he accepted the agency's argument that it had heavily relied on the
interviewing process to make its selection. Complainant also contends
that the AJ erred when he found that complainant and the selectee were
equally qualified for the position. Complainant further contends that
SO1 evaluated his interview using criteria different than the standard
criteria for the position. In response, the agency requests that we
affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race.
The Commission notes that, in contrast to the selectee's interview,
complainant failed to answer questions directly and did not tailor his
answers to the position for which he was applying. The record also shows
that neither SO1 nor S1 supported selecting complainant for the position.
The Commission further finds that Complainant has not produced sufficient
evidence to establish that the agency's heavy reliance on the candidates'
interviews was racially discriminatory.
Under these circumstances, we discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final order.
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
January 9, 2003
__________________
Date