01A13144
07-25-2002
Michael E. Gohrig, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Michael E. Gohrig v. United States Postal Service
01A13144
July 25, 2002
.
Michael E. Gohrig,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A13144
Agency No. 4C-170-0040-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the FAD.
The record reveals that, at all relevant times, complainant was an
applicant for employment at the Williamsport and Cogan Station Post
Offices. Complainant sought EEO counseling and subsequently filed a
formal complaint on May 12, 2000, alleging that he was discriminated
against on the bases of his sex (male) and age (date or birth: February
15, 1953) when:
(1) On July 29, 1999, he interviewed for a Rural Carrier Associate
(RCA) position and management awarded the position to a female;
On November 2, 1999, management denied him the opportunity to interview
for a RCA position and awarded the position to a female; and,
On May 26, 2000, complainant received a call-in notice for a RCA position
at the Cogan Station Post Office, however, management denied him an
interview and subsequently, hired a young female for the position.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a FAD.
In its FAD, the agency concluded that, as to issue (1), complainant
failed to establish a prima facie case of discrimination on either basis,
because no one was hired from the hiring work sheet. As to issue (3),
the FAD found that complainant failed to establish a prima facie case
on either basis, because complainant did not show up for the interview,
therefore, he is not similarly situated to the individual who showed
up to the interview. As to issue (2), the FAD found that complainant
established a prima facie case of sex and age discrimination. However,
the FAD found that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, the individual who scored the
highest on the test and had prior experience, was selected. The FAD
concluded that complainant failed to meet his burden of establishing,
by a preponderance of the evidence, that the agency's reason was a
pretext for sex and/or age discrimination.
On appeal, complainant restates arguments previously made.<2> Complainant
further contends that the �Rule of Three� is invoked arbitrarily whenever
a preferred candidate is not among the applicants. As to issue (2),
complainant denies that the Personnel Clerk (C1) ever told him that
his application would only be valid for ninety days. Additionally,
as to issue (3), complainant denies that he ever received a call for
an interview. The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decisionmaking process and had a determinative
influence on the outcome." Id.
In disparate treatment cases such as the instant appeal, where there is an
absence of direct evidence of discrimination, the allocation of burdens
and order of presentation of proof is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves, 530
U.S. at 142 (applying McDonnell Douglas analysis to ADEA claim). Under
this analytic framework, complainant must first establish a prima facie
case of unlawful age and sex discrimination--that complainant was a
member of a protected class of individuals under the ADEA and/or Title
VII; that he applied for and was otherwise qualified for the position;
that despite his qualifications complainant was rejected; and that the
agency subsequently selected someone for the position who was not in
complainant's protected classes. Reeves, 530 U.S. at 142; O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996);
McDonnell Douglas, 411 U.S. at 802. We note that it is not necessary
for complainant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor, 517 U.S. at 312; EEOC Enforcement Guidance
on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
at n.4 (Sept. 18, 1996). However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves, 530 U.S. at
143 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981))
Assuming, arguendo, that complainant established a prima facie case of
sex and age discrimination as to all three issues, we turn to the agency
to articulate legitimate, nondiscriminatory reasons for its actions.
As to issue (1), the interviewer (I1) states that only two individuals
applied for the position, complainant and a female, age 26. ROI,
Affidavit B. Due to the �Rule of Three," and because there were not
three applicants, I1 states that she chose not to select either applicant.
Id. I1 further states that a temporary relief carrier (female), who was
hired as a walk-in appointment covered the route. Id. As to issue
(2), C1 asserts that complainant was not considered for the position
because he reported to the interview unprepared. ROI, Affidavit C.
C1 states that complainant needed a new application for this interview
because an application is only good for ninety days. Id. C1 states
that complainant was aware that he needed a new application because a
blank application was mailed to him along with a call-in notice. Id.
As to issue (3), the Postmaster (P1) states that complainant never
called or reported for his scheduled certified interview, and that,
as a result, his name was pulled from consideration. ROI, Affidavit D.
While complainant has presented several challenges to the agency's reasons
for his nonselection, we are not persuaded by a preponderance of the
evidence, that the agency's articulated reasons for his nonselections
were pretext for sex discrimination, or that his age actually played
a role in the agency's decisionmaking process and had a determinative
influence on the outcome. See Reeves, 530 U.S. at 141. Accordingly,
we AFFIRM the FAD.
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
July 25, 2002
__________________
Date
1 The record indicates that complainant originally filed an EEO complaint
on issues (1) and (2) on May 12, 2000. Subsequently, on June 19, 2000,
complainant amended his complaint to include issue (3). See Report of
Investigation (ROI), at 4.
2 Complainant also raises new issues on appeal, which is not permitted by
the regulations. Therefore, even assuming, arguendo, that complainant's
allegations are related to his instant claim, it would be inappropriate
for the Commission to address the allegation on appeal. Singleton
v. Social Security Administration, EEOC Appeal No. 01984784 (April 13,
2001). Complainant is advised that if he wishes to pursue, through the
EEO process, his additional allegations, he must contact an EEO counselor
within 15 days after he receives this decision. The Commission advises
the agency if complainant seeks EEO counseling regarding these new
claims within the above 15 day period, the date complainant filed the
appeal statement in which he raised this allegation shall be deemed the
date of initial EEO contact, unless he previously contacted a counselor
regarding these matters, in which case the earlier date shall serve as
the EEO counselor contact date. Cf. Alexander J. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998); Williams
v. Department of the Navy, EEOC Request No. 05A10183 (June 21, 2001).