01A40829_r
03-18-2004
Joel A. Brookins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joel A. Brookins v. United States Postal Service
01A40829
March 18, 2004
.
Joel A. Brookins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40829
Agency No. 4-G-780-0068-03
Hearing
No. 360-2003-08307X
DECISION
Complainant filed a formal EEO complaint in which he claimed
that the agency discriminated against him on the bases of his race
(African-American), age (45) and sex (male) when he was not selected
for the position of Rio Grande District Family and Medical Leave Act
Coordinator. The record reveals that two individuals were selected
for the position under two separate vacancy announcements. One of the
selectees was a 41 year old African-American female (hereinafter referred
to as the first selectee). The other selectee was a 38 year old Hispanic
female (hereinafter referred to as the second selectee).
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. The hearing was held and on August 19, 2003, the AJ issued
a decision finding no discrimination. On October 9, 2003, the agency
issued a final action implementing the AJ's decision.
On appeal, complainant contends that since there were six applicants for
the relevant position, the selecting official was required under agency
regulations to designate a review committee to conduct the interviews
rather than conduct the interviews by himself. Complainant disputes the
selecting official's testimony that the situation, task, action, result
(STAR) statements written by
the first selectee to support her knowledge, skills and abilities (KSA's)
were clearer and more defined than his were. Complainant maintains that
his STAR statements were clearer and that the depth of his experience
and scope of his responsibilities were superior to those of the first
selectee. With regard to the second selectee, complainant acknowledges
that her qualifications are comparable to his, but he claims that
the scope of his responsibilities was greater. Complainant argues
that the selecting official gave undue consideration to the first
selectee's background as a nurse. According to complainant, the vacancy
announcement did not mention a medical background as a requirement.
Complainant contends that the position required business skills and that
his experience, background and education matched the criteria listed in
the vacancy announcement more than the other candidates. Complainant
notes that he has a college degree whereas the first selectee has an
associate's degree.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation 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.
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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000). Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the ADEA. See Sutton v. Atlantic Richfield Co.,
646 F.2d 407, 411 (9th Cir. 1981).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990). In this
case, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Consequently, we will
dispense with an examination of whether complainant established a prima
facie case with respect to the above cited issues and review below, the
reasons articulated by the agency for its actions as well as complainant's
effort to prove pretext.
With respect to complainant not being selected for the position of
Rio Grande District Family and Medical Leave Act Coordinator, we note
that an agency has the discretion to choose among equally qualified
candidates so long as the decision is not premised on an unlawful factor.
See Burdine, 450 U.S. at 258-259; Mitchell v. Baldridge, 759 F.2d 80
(D.C. Cir. 1985). We note that in nonselection cases, pretext may be
found where the complainant's qualifications are demonstrably superior
to the selectee's qualifications. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). We shall assume arguendo, that complainant has set
forth a prima facie case of discrimination on the alleged bases of
race, age and sex. Complainant was one of six candidates that was
rated as best qualified for one position and one of four applicants
that was rated as best qualified for the second position. The best
qualified candidates were interviewed by the selecting official for
the two position vacancies. The selecting official explained that
there were four major elements which he considered. These elements
were the 991 application, how well the applicant followed the KSAs and
applied the STAR format, attendance, and how the applicant performed
in the interview. With regard to the 991 application, the selecting
official testified that he used a 90/10 ratio in assigning weight to
agency experience as opposed to non-agency experience. The selecting
official testified that he chose the first selectee based on her
background in nursing, her application of the STAR format, attendance,
and the quality of her interview. The selecting official also noted that
the first selectee had fifteen years of agency experience and more years
of agency supervisory experience than complainant. With respect to the
second selectee, the selecting official stated that she had eleven years
of agency experience, more years of agency supervisory experience than
complainant, and excellent attendance. As for complainant, the selecting
official stated that complainant only gave a general summation when he
applied the STAR format, did not articulate agency applications as well
as the selectees during his interview, and he has only four years of
agency experience and fifteen months of agency supervisory experience.
We find that the agency articulated legitimate, nondiscriminatory reasons
for complainant's nonselections.
As for complainant's claim that the selecting official violated agency
regulations when he interviewed each of the six best qualified candidates
by himself instead of having a review panel conduct the interviews, we
observe that the AJ found credible the selecting official's testimony
that he believed that he had the option of having the review committee
interview the applicants or he could perform the interviews. We agree
with the AJ that even if the agency official misinterpreted the
relevant agency regulation, complainant failed to establish that the
misinterpretation was intended to disadvantage complainant due to his
race, sex or age. As for complainant's claim that he was more qualified
than the first selectee because he has a college degree and the first
selectee has an associate's degree, we observe that a college degree
was not a requirement for the position. With regard to complainant's
assertion that the selecting official placed undue weight on the first
selectee's nursing background, we observe that the AJ determined that
the selecting official credibly testified that the first selectee
would have a better understanding of medical terminology in applying
the provisions of the Family and Medical Leave Act. Although a medical
background may not have been necessary for the position at issue, we find
that it was reasonable to believe that the first selectee's experience
as a nurse would be beneficial in addressing matters pertaining to the
Family and Medical Leave Act. Complainant contends that he was clearer
than the first selectee in his STAR statements and that the depth of his
experience and the scope of his responsibilities were superior to those
of the first selectee. Upon review of the entire record, we find that
complainant's qualifications are not so superior to that of the selectees
for the position at issue as to warrant the conclusion that complainant's
nonselections were attributable to discriminatory motivation. We find
that complainant has failed to establish, by a preponderance of the
evidence, that the agency's reasons for his nonselections were pretextual
and intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's final
action finding no discrimination as a preponderance of the record evidence
does not establish that race, age or sex discrimination occurred.
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
March 18, 2004
__________________
Date