01A20177
11-05-2002
Florine M. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Florine M. Williams v. United States Postal Service
01A20177
November 5, 2002
.
Florine M. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A20177
Agency No. 4C-164-0066-99
Hearing No. 170-AO-8379X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.
The record reveals that during the relevant time, complainant was employed
as an EAS, Level 17, EEO Counselor/Investigator at the agency's Erie
District facility in Pennsylvania. The record reflects that complainant
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
(S2), and the National Account Representative (S3: Black female) were
also present during the interviews.
SO1 asked each candidate the same questions 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, but 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 she failed to
adequately address questions during the interview and in her application
packet. SO1 also stated that complainant should have been more familiar
with the Diversity Policy statements. Although S3 agreed that the
selectee's interview was better than complainant's, she testified that
complainant was the better choice. In fact, S3 expressed reservation
regarding the selectee's ability to make oral presentations and
effectively deal with people of diverse racial, ethnic and gender groups.
The record establishes that the agency also advertised an EAS, Level
19, Manager of EEO Dispute Resolution position. Several applicants,
including complainant, submitted applications for the position. One of
the applicants (CW2: White male) submitted a request for non-competitive
consideration. Upon receipt of this request, the record reflects that
the selecting official (SO: White male), interviewed and evaluated CW2's
qualifications and subsequently, selected him non-competitively.
Complainant contends that on several occasions SO2 expressed his desire to
reduce the number of EEO complaints in the district. The record reflects
that complainant refused SO2's requests. Complainant also contends that
during the 18-month period that SO2 was the manager of human resources,
they had numerous conflicts because of her refusal to dilute the EEO
protections of agency employees. According to complainant, as a result
of these conflicts, SO2 denied her request for several training courses,
interfered with the selection process for the Diversity Development
Specialist position, and told her that she did not deserve the higher
level of pay associated with her detail assignment.
Complainant filed a formal EEO complaint on October 20, 1999, alleging
that the agency had discriminated against her on the bases of race
(African-American), sex (female), and reprisal (for prior EEO activity
under Title VII) when:
(1) on July 20, 1999, she was not selected for the EAS, Level 19,
Diversity Development Specialist position;
on June 20, 2000, she was not selected as the EAS, Level 19, Manager
of EEO Dispute Resolution; and,
she was subjected to a hostile working environment.
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, in regard to the Diversity Development
Specialist position, complainant established a prima facie case of race
discrimination because she applied, and was qualified, for the position,
and the person selected for the position was a White female. The AJ also
concluded that complainant established a prima facie case of race and
gender discrimination in regard to the EEO Dispute Resolution position.
Specifically, the AJ found that complainant applied, and was qualified,
for the position, and the person selected for the position was a White
male.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination. In particular, the AJ found that complainant
engaged in prior protected activity; management was aware of the
protected activity; she suffered an adverse employment action when she
was not selected for the EEO Dispute Resolution position; and, a nexus
may be inferred because the non-selection occurred within months of the
protected activity.
Regarding complainant's claim of a hostile working environment, the AJ
concluded that she did not establish a prima facie case. Specifically,
the AJ found that complainant failed to show that the conduct of which
she complained was sufficiently severe to create a hostile working
environment. The AJ also noted that the criticism that SO subjected
complainant to stemmed from their interactions on the job and their
disagreement regarding how the agency's EEO office should run and how
investigations should be conducted.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that in regard
to the Diversity Development Specialist position that SO1 relied heavily
on the interviewing process when he made his selection. SO1 also stated
that complainant's application submission rambled, unlike CW1's submission
which was concise and to the point.
Regarding the EEO Dispute Resolution position, the AJ found that because
SO2 non-competitively selected CW2, he never reviewed complainant's
application nor that of any other competitive applicant. SO2 also
selected CW2 because he was a long-time postal employee, had relevant
experience, interviewed well, and was an attorney and the district's
offices was being overburdened with legal issues. The AJ further found
that complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discriminatory animus
and/or retaliatory motive.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the AJ abused his
discretion when he did not permit the requested amendment to the complaint
regarding retaliatory conduct. Complainant also contends that the AJ
abused his discretion when he refused to consider evidence of a pattern
and practice of discrimination and retaliation by SO2 in other related
cases. In response, the agency restates the position it took in its FAD,
and 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); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). 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.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
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 in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race and/or sex.
In regard to the Diversity Development Specialist position, the Commission
finds that although complainant contends that she was observably superior
to CW1, we disagree. The record shows that CW1 and complainant possessed
extensive postal service experience. The record also shows that all
three individuals that conducted the interviews agreed that CW1 had the
best interview.
In regard to the EEO Dispute Resolution position, the Commission also
finds that complainant failed to provide sufficient evidence that the
agency's non-competitive selection of CW2 was a pretext for race, sex,
and/or reprisal discrimination. Complainant has not sufficiently refuted
the agency's determination that CW2 was an attorney, a long-time postal
employee, and had an impressive resume. The Commission notes that the
agency envisioned CW2 handling duties outside of those already on the
position description due to his status as an attorney. Complainant has
not shown that due to her degree or the number of projects she had
successfully completed that she was so much more qualified than CW2 as
to indicate that her non-selection was actually due to her race, sex,
and/or reprisal.
The Commission further finds that complainant has not presented
sufficient evidence that would show that she was subjected to a hostile
or severe working environment. In point of fact, the record establishes
that complainant and SO2 had a strained relationship that predated
complainant's protected activity. The record also reflects that SO2
had a generally harsh manner when dealing with all employees.
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
November 5, 2002
__________________
Date