01A13817
09-18-2002
Emmanuel Nartey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Emmanuel Nartey v. United States Postal Service
01A13817
September 18, 2002
.
Emmanuel Nartey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13817
Agency No. 1D-276-0011-00
Hearing No. 140AO8360xAF
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.
BACKGROUND
The record reveals that complainant, a Supervisor, Maintenance Operations,
EAS-16, Tour 2, at the agency's Raleigh Processing and Distribution
Center, in Raleigh, North Carolina facility, filed a formal EEO complaint
on February 22, 2000, alleging that the agency had discriminated against
him on the bases of race (Black), national origin (Ghana), and color
(Black) when on January 5, 2000, he was informed that his request to
supervise electronic technicians (with Sunday and Monday as non-scheduled
days) was not approved, and the position was given to another supervisor
junior to complainant.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
race, color, and national origin discrimination. The AJ found that
complainant is a member of a protected group by virtue of his race, color
and national origin; he applied for the position; assuming complainant
was qualified for the position, the agency selected another employee
outside of complainant's protected groups.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
selectee was more qualified than complainant. Specifically, the AJ
found that the selectee worked in the Supervisory Electronics Technician
position since June 1999 (for approximately six months) and had previously
supervised Electronics Technicians for several years. The AJ found that
the selectee has an Electronics Technician and Supervisor, and selectee
had successfully completed Electronics Technicians training. The AJ
also found that in comparison to complainant, the selectee received
extensive Electronics Technology training, and that complainant had
never been an Electronics Technician (ET) /09 or received ET/09 training.
The AJ further found that although seniority was not a controlling factor,
the selectee had more seniority than complainant.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that complainant failed to show that anything other than selectee's
qualifications, management discretion, and complainant's request for
multiple supervisory vacancies were used to make this decision.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she concluded that
the selectee had more seniority than complainant. Complainant contends
that the selection process was based on seniority at the facility
in question, not with the Agency as a whole. Complainant contends
that he had more seniority at the Raleigh facility than the selectee.
Complainant also argues that he was an honors graduate of a technical
college in the area of computer technology. Finally, complainant alleges
that he had supervised electronics technicians since his promotion to
supervisor in 1993.
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). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id . at 255. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); 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). A complainant must first 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
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that complainant established a prima facie case
of discrimination based on his race, color, and/or national origin,
the Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, we find that
complainant was not selected because the selectee was more qualified than
complainant. The record reveals that the selectee was selected because:
he had been in the position for 6 months; he had successfully completed
ET training; he functioned as an ET for several years; he had supervised
ETs since 1994; and complainant's e-mail indicated he would be satisfied
with the Building Supervisor position, which complainant received.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the
Commission finds that the complainant has failed to do so. In reaching
that conclusion, we noted that complainant merely argued that he
had more seniority at the facility in question than the selectee,
and that management was supposed to make the selection based on the
facility seniority. We find that complainant failed to prove that
he was more qualified than the selectees for the positions at issue.
While complainant contends that he had supervised electronics technicians,
he did not show that his experience was better than complainant nor that
his qualifications are superior to the selectee's. The Commission notes
that in nonselection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We conclude that
complainant failed to show that the agency's action was a pretext for
discrimination.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
decision finding no discrimination.
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 18, 2002
__________________
Date