Emmanuel Nartey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A13817 (E.E.O.C. Sep. 18, 2002)

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