0120130831
05-14-2013
John R. Banks, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
John R. Banks, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130831
Hearing No. 470-2011-00211X
Agency No. 4C-400-0024-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 21, 2012 final action concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster at the Agency's Nortonville, Kentucky Post Office.
On March 22, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), age (over 40), and in reprisal for prior EEO activity when:
1. on December 3, 2010, he was not selected for a detail as Officer-in-Charge (OIC) at the Cadiz, Kentucky Post Office;
2. on December 3, 2010, he was not selected for a detail as OIC at the Russellville, Kentucky Post Office;
3. on December 3, 2010, he was not selected for detail as OIC at the Hopkinsville, Kentucky Post Office;
4. on February 14, 2011, he became aware he was not selected for a detail as OIC at the Oakgrove, Kentucky Post Office;
5. on February 14, 2011, he became aware that he was not selected for a detail as OIC at the Princeton, Indiana Post Office; and
6. on February 14, 2011, he became aware that he was not selected for a detail as OIC at the Elkton, Kentucky Post Office.
Following a hearing held on May 15, 2012, the AJ issued an amended decision finding no discrimination. The AJ found that Complainant did not establish a prima facie case of race, sex, color, age and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that during his testimony, the Manager of Post Office Operations for Area 7 (manager) stated that the OIC position is "actually a classification for a vacant postmaster position or say if a postmaster's on detail in another office then you assign an officer in charge to that position. It's basically a detail." The manager testified that he makes his decisions selecting postmasters for OIC detail assignments based on reviewing the postmasters' end of the year reviews and "postmasters that fall under me, we have discussion about. . . their future, career, and what they're looking at and . . . what they want to be developed in and I kind of have that discussion."
Further, the manager stated that the postmasters would send him an email expressing their interest in a "coming up" vacant and once that position "comes open, I just kind of look at who's showed me interest or I may know of another employee that needs some development because of their career ambitions. And I just kind of ... decide at that point, you know, who to put in that position." The AJ noted that according to the manager, he stated that he selected postmasters within his district and Complainant was not in his district.
The manager stated that in regard to claim 1, he selected a named female Postmaster in his Manager Post Office Operations area for the OIC detail assignment at Cadiz Post Office because he wanted her to develop her skills.
Regarding claim 2, the manager stated that he selected a named female Postmaster of the Lewisburg, Kentucky facility for the OIC detail assignment at the Russellville Post Office because she was part of the management developmental program. Specifically, the manager stated that as part of the management development program, the Lewisburg Postmaster "got nominated for and approved by a board, that I don't have anything to do with. But I had three or four of my managers that put in for this leadership development and part of her process was next level,. . . based on her career ambitions. So we worked out her going in there based on her being in the leadership development program."
Regarding claim 3, the AJ noted that Complainant was offered the OIC detail at Hopkinsville post office but he turned it down. The record reflects that in his affidavit, the manager stated that Complainant "has never been a direct report of mind. The complainant's current postal position is a Postmaster in MPOO area 2. He should be working thru his assigned MPOO for developmental opportunities. I have very limited knowledge of the complainant's knowledge, skills, and abilities outlined above other than those I recall when interviewing him for previous Postmaster assignments in late 2009/early 2010. I tried to work a developmental detail assignment for the complainant as a CSS in Hopkinsville, Kentucky, which he declined, stating he did not need to be managed."1
The AJ further noted that during his testimony, the manager stated that he selected a named male supervisor of the Auburn, Kentucky facility on a detail to the Hopkinsville post office. The manager stated that the Auburn facility is "a level 18 office. [Supervisor] came out of the plant. He got riffed, they had a reduction in force, and I promoted him into the postmaster in Auburn, which is a level 18. And through some of our discussions, through pay for performance and just some other career development discussions, he wanted some - - he wanted some experience in city deliveries. So we worked out a detail opportunity as a supervisor, which is actually a level 17 position in Hopkinsville so he could get some experience with city delivery and some other things on a larger scale because he had told me he had a - - had some ambitions of . . . maybe on down the line being the postmaster of Hopkinsville."
Regarding claim 4, the manager stated that he placed a named supervisor from the Cadiz, Kentucky Post Office on a detail as OIC at the Oak Grove Post Office. Specifically, the manager stated that the supervisor "was the supervisor in Cadiz, Kentucky and [Supervisor's] position got - - they lost their supervisor position in Cadiz. [Supervisor's] currently a form 50 supervisor in Hopkinsville but he went on detail - - he was actually detailed in Cadiz as OIC and then he went to Oak Grove as OIC."
Regarding claim 5, the former Manager of Post Office Operations (former MPOO) stated that she selected a named female OIC of the Madisonville Post Office for an OIC position at the Princeton Post Office because she expressed interest in working at the Princeton Post Office. Specifically, the former MPOO stated that the OIC was familiar with the Princeton Post Office and she knew "the people in the office. And she, like you said, that - - that is her home office so there was no extra added expense for the postal service in placing her there."
The former MPOO testified that during the relevant time Complainant did not express any interest in working at the Princeton Post Office. The former MPOO further stated that she offered Complainant a detail assignment to the Beaver Dam Post Office "which is a level 20. I - - if I recall, it's 40, 45 miles from his location there in Nortonville" but he turned it down. The former MPOO stated that main reason why she offered Complainant the Beaver Dam detail assignment was "because you were a level 16 and you were close to that office." Furthermore, the former MPOO stated that Complainant told her that the Beaver Dam Post Office was too far for him to drive.
Regarding claim 6, the manager stated the he selected the Customer Supervisor Services for the OIC detail assignment at Elkton Post Office because he wanted him to develop his skills. Specifically, the manager stated that the Customer Services Supervisor "is a Customer Services Supervisor in my assigned MPOO area."
Complainant, on appeal, argues that the AJ erred finding no discrimination. For instance, Complainant argues the AJ "erroneously concluded that the respondent had met its burden of production..." Complainant further argues that the AJ's questioning "of [Complainant] was out of line in that it placed him in a position to do more than present a prima faci[e] case. If the ALJ wanted to question [Complainant] along these lines it would have been proper only after the respondent had attempted to meet its burden [emphasis in its original]."
The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, 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 Agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by 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
May 14, 2013
__________________
Date
1 The record reflects that "MPOO" is an abbreviation for Manager Postal Office Operations and "CSS" is an abbreviation for Customer Services Supervisor.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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