01A20239
05-12-2003
Michael G. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael G. Turner v. United States Postal Service
01A20239
May 12, 2003
.
Michael G. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20239
Agency No. 4G-720-1015-96
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Window Clerk at the agency's Bentonville Post Office, in Bentonville,
Arkansas. Complainant sought EEO counseling and subsequently filed a
formal complaint on February 26, 1996, alleging that he was discriminated
against on the bases of race (Caucasian), sex (male), and reprisal for
prior EEO activity when, on September 18, 1995, he was not selected for
the position of Supervisor, Customer Service, EAS-16.
At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the
agency. Complainant initially requested a hearing, but prior to the
hearing date, complainant's attorney notified the AJ that complainant
wished to withdraw his hearing request. The agency subsequently issued a
final decision (FAD). In its FAD, the agency concluded that complainant
did not establish a prima facie case of race or sex discrimination
because he was unable to show that he was treated differently than
otherwise similarly situated employees outside of his protected classes.
The agency noted that all of the applicants for the Supervisor position
were of the same race as complainant. The agency further noted that,
while complainant did not advance to the interview stage, four of the six
applicants who did were male, and one of the two final selectees was male.
The agency found that complainant did establish a prima facie case of
discrimination based on reprisal. The agency further found, however,
that the agency articulated legitimate, nondiscriminatory reasons for its
action, namely, that complainant performed poorly in supplying written
responses on his application. The agency concluded that complainant
failed to establish that the agency's articulated reasons were pretext
for discrimination. From this decision, complainant appeals.
On appeal, complainant requests that this case be remanded for a hearing.
He contends that his attorney withdrew his hearing request without his
authorization. He has submitted newspaper clippings and excerpts from
the local Bar journal showing that his attorney had closed his practice
and left the State and was facing possible criminal charges for taking
clients' money and not performing any legal services. The agency requests
that we affirm its FAD.
As an initial matter, we note that the AJ dismissed the hearing
request and remanded the case to the agency on May 25, 2001, and that
notification of this action was mailed to complainant on June 4, 2001.
Complainant, however, did not submit any objection to the AJ's action
for four months, until October 5, 2001, when he filed his appeal of the
agency's FAD. While the Commission recognizes complainant's predicament
regarding his attorney, we note that a complainant is responsible for
proceeding with the complaint whether or not the complainant has an
attorney-representative. See 29 C.F.R. � 1614.605(e). Accordingly,
complainant's request for a hearing is denied.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
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
proffered by the agency was a pretext for discrimination. Id. at 256.
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its action. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The agency stated
that applicants for the positions were required to submit a 991 Form on
which they described their Knowledge, Skills, and Abilities (KSAs) on a
number of different areas relevant to the position sought. The agency
witnesses all agreed that because of complainant's poor responses on
his 991 Form, he was not selected to be one of the final six interviewees
for the two positions. While one member of the selection committee (S1:
male, race unknown) stated that �the retaliation [complainant] has been
subjected to ruined any chance for promotion . . . he may have had� Report
of Investigation (ROI) p. 42, Affidavit E, p. 5, S1 also stated that,
regarding the position at issue, complainant's poor responses on his 991
Form �did not qualify him for an interview or further consideration.�
Id., p. 39. Two other members of the selection committee denied any
knowledge of complainant's EEO activity.
The burden thus returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). We note that in nonselection
cases, pretext may be found where the complainant's qualifications are
demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). However, an employer has the discretion to
choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981).
Following a careful review of the evidence, we find that complainant
has failed to meet his burden of establishing pretext. We note that
complainant has not denied that his responses on his 991 Form were poor.
Instead he contends that his supervisor gave a poor evaluation of his
abilities to the selection panel, and further, that one of the selectees
was selected because she was �dating� his supervisor. ROI, p. 6,
Affidavit A, p. 3. Complainant, however, has offered no corroborative
evidence to support such contentions. Regarding his allegation that
his supervisor provided a poor evaluation of his abilities, such an
allegation is contradicted by two members of the selection committee who
denied that the supervisor's evaluation was dispositive, and who further
stated that in any event the evaluation was generally favorable. ROI,
Affidavits C, p.3, & D, p.3.
Regarding complainant's allegation that one of the selectees was
romantically involved with his supervisor, the Commission has taken
the position that sexual favoritism in the workplace which adversely
affects the employment opportunities of third parties may, under certain
circumstances, constitute sexual harassment prohibited by Title VII.
See EEOC's Policy Guidance on Employer Liability under Title VII for
Sexual Favoritism, Notice No. N-915-048 (January 12, 1990) (hereinafter
referred to as "EEOC Policy Guidance"). However, the Commission's
position on this issue clearly holds that Title VII does not prohibit
isolated instances of preferential treatment based upon consensual
romantic relationships. While favoritism towards a spouse or friend may
be unfair, it does not constitute discrimination in violation of Title
VII because both men and women are equally disadvantaged for reasons
other than their gender. EEOC Policy Guidance at 2. See also, Miller
v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa., aff'd mem., 856
F.2d 184 (3d Cir. 1988); DeCintio v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 1986), cert. denied, 108 S. Ct. 89 (1987). In the
instant case, complainant has alleged merely a romantic relationship
between the selectee and his supervisor, but has made no allegation of
any coercion on the part of the supervisor. Nor has he presented evidence
that his qualifications were demonstrably superior to those of either of
the selectees, or otherwise shown that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
May 12, 2003
__________________
Date