0120110817
04-25-2011
Frank N. Iannella, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Frank N. Iannella,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120110817
Hearing No. 520-2009-00086X
Agency No. 4A-105-0041-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 28, 2010 final order concerning
his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the
final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as the Postmaster at the Post Office facility in Marlboro, New York.
On July 30, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of age (60) and in reprisal
for prior protected EEO activity when, on or about April 28, 2008,
he was not selected for the position of Postmaster, Middletown, New York.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The AJ held a hearing on June 3, 2010,
and issued a bench decision immediately thereafter.
In his decision, initially, the AJ determined that Complainant had
established a prima facie case of discrimination on the alleged bases.
Next, the AJ found that the Agency had articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the
Postmaster position. Namely, the selecting official (SO) testified that
he interviewed three applicants for the position and based upon his review
of the applications and interviews, he determined that Complainant was
not the best qualified candidate. SO testified that he was seeking an
individual with specific knowledge and experience with the Agency’s
productivity programs and applications due to the Agency’s ongoing
financial problems with operations and services. SO affirmed that
Complainant candidly admitted that he did not have knowledge or experience
related to the Agency’s productivity programs and therefore, could not
answer those types of questions. Conversely, the selectee demonstrated
not only his knowledge of the Agency’s productivity programs, but also
programs’ origins and practical applications at the Post Office.
The AJ then concluded that Complainant had presented no evidence that
the Agency’s reasons were pretextual. As a result, the AJ held that
Complainant had not been discriminated or retaliated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
Complainant submitted no contentions on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd.,
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.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For Complainant to prevail, he 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. 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
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Upon review of the record, the Commission finds that there is substantial
evidence in the record to support the AJs finding of no discrimination
or retaliation. The Agency articulated legitimate, nondiscriminatory
reasons for not selecting Complainant. Specifically, SO affirmed
that he was seeking an individual who would work productively for the
Agency, kept cost effectiveness at the forefront of the agenda, and was
well versed in the Agency’s productivity applications. Hr’g Tr.,
at 32. SO testified that when he asked Complainant about the Agency’s
productivity applications, Complainant stated that he was unable to answer
any questions about them because he did not have any experience using
them. Id. at 35. By contrast, the selectee was able to give detailed
and thorough answers about the productivity applications and described
their origins, advantages, and disadvantages. Id. SO noted that not
all of the Agency’s post offices used the productivity applications;
however, the Middletown Post Office did because of its number and type
of employees. Id. at 37. SO therefore believed that the selectee was
the better candidate.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapro v. Soc. Sec'y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency’s proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256. Complainant can also establish
pretext by showing that his qualifications are “plainly superior”
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037. 1048 (10th
Cir. 1981).
In the present matter, Complainant has presented no persuasive evidence
that his qualifications were plainly superior to those of the selectee's.
The Commission notes that an employer has discretion to choose among
equally qualified candidates, so long as the selection is not based on
unlawful criteria. In the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency’s assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450
U.S. at 259. Here, the weight of the evidence reveals that SO chose the
selectee because he believed he was better qualified. Complainant failed
to rebut the Agency’s reasons with any evidence that would undermine
the Agency's explanation.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by substantial evidence in the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 25, 2011
Date
2
0120110817
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110817