0120064966
05-29-2008
Kevin Clemons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Kevin Clemons,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01200649661
Hearing No. 380-2006-00068X
Agency No. 1E-997-0008-05
DECISION
On August 23, 2006, complainant filed an appeal from the agency's July
27, 2006, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Maintenance Mechanic, MPE, at the agency's Processing and Distribution
Center in Anchorage, Alaska. The record reflects that, on April 11,
2005, the Manager, Maintenance Operations (Manager) posted a list of
available vacant positions. On April 12, 2005, complainant submitted a
Preferred Duty Assignment Selection Form, indicating that he desired a
vacant Maintenance Mechanic position with Thursdays and Fridays off.2
On April 16, 2005, the Manager awarded a vacant Maintenance Mechanic
position, with Thursdays and Fridays off, to the selectee (Caucasian),
after he learned that the selectee, who worked in the custodial craft, had
earned a rating score qualifying him for a Maintenance Mechanic position.
Shortly after the position was awarded, the union informed the Manager
that he had improperly awarded the position to the selectee because no
one had been given the opportunity to bid on the position. The Manager
then cancelled the selection; spoke with the Supervisor of Tour 3, who
indicated that he preferred to have the vacant position listed with
Wednesdays and Thursdays off; and posted a Notice of Intent to Fill
a Vacant Duty Assignment for the position of Maintenance Mechanic with
Wednesdays and Thursdays off. Complainant did not submit a new Preferred
Duty Assignment Selection Form requesting to fill the Maintenance Mechanic
position with Wednesdays and Thursdays off. The position was ultimately
awarded to the selectee.
On June 21, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of race (African-American) when,
on April 16, 2005, he was not awarded a Mail Processing Equipment Mechanic
position.3
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on June 8, 2006. The AJ
issued a bench decision on June 12, 2006, finding no discrimination.
Specifically, the AJ found that complainant failed to establish a prima
facie case of race discrimination. The AJ further found that complainant
failed to establish that the agency's legitimate, nondiscriminatory
reasons for its actions were a pretext for unlawful race discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. This appeal ensued. Neither the complainant nor the agency
submitted a statement on appeal.
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.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim, 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 Construction Co. v. Waters,
438 U.S. 567, 576 (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). 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.
Assuming arguendo that complainant established a prima facie case of
race discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the
Manager testified that he initially awarded the position in question
to the selectee because the Manager thought that it was a residual
position, i.e. a position that no one had bid on after it had already
been announced. The Manager further testified that he cancelled the
selection after a union official notified him that the position was not a
residual position. The Manager subsequently posted a Notice of Intent to
Fill a Vacant Duty Assignment for the position of Maintenance Mechanic.
The Manager indicated that the position was posted with Wednesdays and
Thursdays off because that was requested by the Supervisor for Tour 3.
The Manager noted that complainant did not indicate interest in a position
with Wednesdays and Thursdays off, and he ultimately awarded the position
to the selectee.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. We find that the AJ's determination that complainant
failed to establish pretext is supported by substantial evidence in
the record. Moreover, we find that the record is devoid of any evidence
that the agency's actions were motivated by discriminatory animus toward
complainant's race. Agency officials indicated that complainant would
have been selected for the Maintenance Mechanic position with Wednesdays
and Thursdays off if he had indicated his preference for that specific
position.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 29, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 A Preferred Duty Assignment Selection Form lists the specific duty
assignments in an employee's current occupational group and level that
he/she prefers over the one he/she currently holds.
3 The complainant's formal complaint also alleged retaliation
in violation of Title VII. However, the agency did not address
complainant's retaliation claim, and complainant does not address this
claim on appeal. Therefore, the Commission will not address this claim.
See EEOC Management Directive 110, Chapter 9, � IV.A. (November 9, 1999).
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0120064966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064966