0120110600
09-13-2012
Judith A. Grandy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Judith A. Grandy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110600
Hearing No. 480-2009-00586X
Agency No. 4F-920-0052-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 2010 final order concerning her 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Letter Carrier at the Agency's Post Office in Hemet, California. On April 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (White), and age (51) when, in March 2009, she was passed over for the 204B program (temporary supervisor detail assignment).1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion and issued a decision without a hearing on August 31, 2010.
In the decision, the AJ initially dismissed Complainant's claims that she was not selected for four 204B assignments from March 2007 through July 2008 as untimely. The AJ found that it was undisputed that Complainant was aware that she had not been selected at the time of her non-selections and she failed to contact an EEO Counselor within the 45-day limitation period for those non-selections. As a result, the AJ dismissed the four 204B non-selections from March 2007 through July 2008.
As to the March 2009 non-selection, the AJ determined that Complainant had not established a prima facie case of discrimination on the alleged bases. Nonetheless, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Officer-in-Charge (OIC) chose the selectee because the selectee had been promoted to a carrier technician position, had completed On-the-Job Instructor (OJI) training and was a carrier job instructor, and had previously held a 204B assignment at another post office. Further, OIC stated that he considered Complainant's experience at the Hemet Post Office and experience supervising letter carriers, but he believed that the selectee was best qualified for the 204B assignment.
In attempting to establish that the Agency's reasons were pretext, Complainant contended that she had significantly more overall experience because she had been with the Postal Service since 1979 and, even though she had only been at the Hemet Post Office since November 2006, she thought she was more qualified for the position than the selectee. Further, she stated that she was familiar with some of the carrier routes, but she did not believe that route familiarity should be a necessary factor to determine who should be selected for a 204B position.
The AJ determined that even though Complainant may have had more experience than the selectee and she was familiar with multiple routes at the Hemet Post Office, she did not dispute that the selectee had more knowledge of the Hemet routes, that he had previously participated in a 204B detail at another post office, he had completed OJI training, and that he had served as a carrier instructor. The AJ concluded that Complainant had not established that OIC's reasons for not selecting her were pretextual. As a result, the AJ found that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without hearing and overlooked evidence supporting her claims. Further, Complainant states that there are discrepancies in Agency management's sworn statements. Finally, Complainant asks the Commission to consider the untimely non-selection/non-promotion decisions as background evidence in support of her timely non-selection claim and reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
The AJ's Dismissal of Four Non-selections
EEOC Regulation 29 C.F.R. � 1614.105(a) (1) requires that complaints of discrimination be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Complainant's claims that she was not selected for four 204B detail assignments from March 2007 through July 2008 occurred more than 45 days prior to Complainant's initial January 2009 EEO counselor contact and Complainant has not offered adequate justification for excusing this untimely contact. Complainant argues that these non-selection claims are sufficiently related to the one timely-raised non-selection claim to constitute a continuing violation. The Supreme Court has held that discrete acts such as hiring, firing, and promotions that fall outside of the limitations period are not actionable and no recovery is available. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Even if the discrete acts are arguably related to other discriminatory acts that occur within the filing period, they are not actionable if untimely raised. Id. See also, EEOC Compliance Manual 915.003, Section 2: Threshold Issues, (rev. July 21, 2005). However, as the Court recognized, an employee may use the prior acts as background evidence in support of a timely claim. Morgan at 113.
The Commission concludes that the AJ was correct in dismissing these non-selections as untimely. The Commission will, however, consider Complainant's previous non-selections as background evidence.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, the Commission will assume, without so finding, that Complainant established a prima facie case of discrimination on the alleged bases. The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Specifically, OIC affirmed that he based his selection on a variety of factors, including knowledge of the office and the workforce, familiarity with the routes, and the applicants' attitude and verbal communication. ROI, at 104. OIC stated that he especially wanted to select someone with experience and knowledge of the Hemet Post Office. Id. OIC confirmed that he selected the selectee for the 204B detail in March 2009, because he believed he was the best qualified based on his experience at the Hemet Post Office, his prior 204B experience, and his knowledge of the routes and carriers. Id. at 105.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged retaliatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for unlawful reprisal. Shapiro v. Soc. Sec. 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. One way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant contends that she was better qualified for the position because she has been with the Agency since 1979 and ran her own small business for 18 years. The Commission notes that number of years of experience, alone, is insufficient to establish that someone's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). A review of Complainant's and the selectee's applications does not reveal that Complainant's qualifications for the position were plainly superior to those of the selectee. 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.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's protected classes were factors in any of the Agency's actions. The record establishes that OIC chose the selectee because he believed that the selectee was better qualified and would be better equipped to meet the Agency's needs. Complainant failed to rebut the Agency's reasons with any evidence that would undermine the Agency's explanation. Thus, the Commission finds no evidence in the record which would support a finding that the selection was tainted by discriminatory animus or that the reasons articulated by the Agency for its selection were mere pretext to hide unlawful discrimination. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated against as alleged.
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 Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
September 13, 2012
Date
1 Complainant alleged three additional claims which the Agency dismissed for failure to state a claim and untimely EEO Counselor contact. Complainant failed to oppose the dismissal of those claims before the Administrative Judge. Complainant does not raise any challenges regarding the dismissed claims on appeal; therefore, the Commission declines to address them in this decision. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-10 (Nov. 9, 1999).
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0120110600
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110600