01a51854
05-27-2005
Mary F. Bell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Mary F. Bell v. United States Postal Service
01A51854
May 27, 2005
.
Mary F. Bell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A51854
Agency No. 1-J-602-0028-01
Hearing No. 210-2004-00110X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Supervisor of Distribution
Operations at the agency's Palatine Processing and Distribution Center in
Illinois, filed a formal EEO complaint on July 3, 2001, alleging that the
agency discriminated against her on the bases of race (African-American),
sex (female), color (Black), disability (hypertension, ulcer, insomnia,
depression, anxiety, severe headaches), and reprisal for prior EEO
activity when:
(1) from November 2000 to January 5, 2001, the Manager of Distribution
Operations (M1) subjected her to a hostile work environment by repeatedly
berating and yelling at her in front of other employees and by issuing
her a seven-day in-house suspension;
on June 12, 2001, management failed to select her for the position of
Manager, Processing and Distribution, EAS-23, at the agency's Rockford
P&DC, under vacancy announcement number 06713;
on June 4, 2002, management failed to select her for either of two
vacant Supervisor of Customer Service, EAS-16, positions under vacancy
announcement number 02-0016; and
on June 19, 2002, management failed to select her for the position
of Manager of Distribution Operations, EAS-18, at the Rockford P&DC,
under vacancy announcement HQ-2925.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
with respect to complainant's hostile work environment claim and the
June 12, 2001, non-selection, finding no discrimination.
As to those two issues, the AJ concluded that after viewing the evidence
in the light most favorable to complainant, a decision without a hearing
was appropriate as there were no genuine issues of material fact.
The AJ found that assuming, arguendo, complainant established a prima
facie case of race, color, sex, disability and reprisal discrimination,
the actions alleged were not sufficiently severe or pervasive as to
rise to the level of actionable harassment. In so finding, the AJ
noted that while M1 "used inappropriate tone and language to express
her disapproval" with the way complainant supervised employees, the
nature of the disagreement between M1 and complainant was professional.
(AJ Decision 1, 14). Further, the AJ found that the record was devoid of
any evidence showing that M1's behavior was motivated by discriminatory
or retaliatory animus toward complainant's protected classes. The AJ
also found that, with respect to not being selected on June 12, 2001,
complainant failed to show that the agency's articulated legitimate,
nondiscriminatory reason for its actions was pretextual because she failed
to show that her qualifications were superior to those of the selectee.
With respect to the two remaining non-selections claims, the AJ
rejected the agency's motion for summary judgement and a hearing
was held. Following a hearing, the AJ issued a decision finding no
discrimination. The AJ found that assuming, arguendo, complainant
established a prima facie case of discrimination on all alleged bases,
the agency, nonetheless, articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the AJ found that the review committee
members for both positions at issue testified that complainant was not
the best qualified applicant, and that the selectees had more relevant
experience and superior interviews. The AJ concluded that complainant
failed to establish that these articulated reasons were a pretext for
unlawful discrimination.
The agency's final order implemented both decisions by the AJ. On appeal,
complainant contends that the AJ made numerous errors of law and fact, and
reiterates her contention that she was subjected to unlawful harassment
and discrimination.
First, we shall address the AJ's issuance of a decision without a hearing
on issues (1) and (2). 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. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
Here, the Commission finds that a decision without a hearing was
appropriate, as no genuine issue of material fact exists with respect to
complainant's hostile work environment claim, or her non-selection for
the position of Manager, Processing and Distribution, on June 12, 2001.
Viewing the evidence in a light most favorable to complainant, we concur
with the AJ's finding that the actions alleged do not rise to the level of
actionable hostile work environment harassment. We also concur with the
AJ's finding that, with respect to her non-selection on June 12, 2001,
complainant failed to show that the agency's articulated legitimate,
nondiscriminatory reason for its actions was pretextual. Namely, that
the selectee was the most qualified applicant for the position at issue,
and had more relevant experience than complainant.
As to the remaining claims, 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.
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). He
must generally 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 prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In a non-selection case, pretext may be demonstrated where complainant's
qualifications were "so plainly superior as to require a finding of
pretext." Cadle v. Department of Agriculture, EEOC Appeal No. 01997044
(June 3, 2002) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981)). When choosing among highly qualified candidates for a
position, employers generally have broad discretion to set policies
and make personnel decisions, and should not be second-guessed by a
reviewing authority, absent evidence of unlawful motivation. Cadle, supra
(citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
259 (1981)).
In the instant case, we concur with the AJ's finding that even assuming,
arguendo, complainant established a prima facie case of race, color,
sex, disability, and reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant for
the positions at issue. The record reflects that, as to the June 4, 2002,
non-selection, the review committee members for the Supervisor of Customer
Services positions testified that of the eight applicants for the two
available positions, complainant received one of the lowest scores for
both her application package and her interview. (Hearing Transcript,
37; 38; 48-53; 92; 245-6; 251). Additionally, the committee members
testified that both of the selectees for the positions at issue were
already performing as Supervisors of Customer Services at the time of
the selection, whereas complainant failed to demonstrate that she had
the necessary knowledge of the functions of the position. (H.T., 60-63;
100; 254).
With respect to the position of Manager of Distribution Operations,
the record shows that the review committee members testified that of
the four applicants for the position, only the selectee demonstrated
that she had the necessary managerial experience, and the ability to
perform the functions of the job and lead during a crisis situation.
(H.T., 136-9; 195; 198; 220-222; 224-226). They also testified that
while complainant had a good deal of supervisory experience, she had
no experience as a manager. (H.T., 145-6; 195; 207; 240). Despite
complainant's contentions on appeal, we find that she failed to proffer
any evidence to show that her qualifications for the positions at issue
were superior to those of the selectees, or that the agency's actions
were motivated by discriminatory or retaliatory animus.
Therefore, we discern no basis to disturb the AJ's decision. Accordingly,
after a careful review of the record, we affirm the agency's final order.
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
May 27, 2005
__________________
Date