01A24032
09-03-2003
Richard E. Arline, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.
Richard E. Arline v. United States Postal Service
01A24032
September 3, 2003
.
Richard E. Arline,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 01A24032
Agency Nos. HI-0035-00; HI-0028-01; HI-0033-01
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 Postal Inspector, Grade ISLE-14, at the agency's New Jersey Division
Headquarters, North Jersey Carribean Division, in Newark, New Jersey.
Complainant sought EEO counseling and subsequently filed a formal
complaint on January 10, 2000 (Agency No. HI-0035-00), alleging that he
was discriminated against on the bases of race (African-American) and sex
(male) when (1) on November 5, 2000, complainant was not selected for
two vacancies in the position of Assistant Inspector in Charge, Grade
ISLE-15, in the Southwest Division of the U.S. Postal Inspection Service.
Complainant amended this complaint to include another allegation of
race and sex discrimination when (2) on May 17, 2000, complainant was
not selected for the position of Field Office Inspector in Charge, Grade
ISLE-15, located in Memphis, Tennessee, in the Southwest Division of the
U.S. Postal Inspection Service. Complainant again sought EEO counseling
and subsequently filed a formal complaint on October 17, 2000 (Agency
No. HI-0028-01), alleging that he was discriminated against on the bases
of race and sex when (3) on July 28, 2000, complainant was not selected
for two vacancies in the position of Assistant Inspector in Charge, Grade
ISLE-15, in the New York Metro Division of the U.S. Postal Inspection
Service. Complainant again sought EEO counseling and subsequently filed
a formal complaint on October 26, 2000 (Agency No. HI-0033-01), alleging
that he was discriminated against on the bases of race and sex when (4)
on March 13, 2000, complainant was not selected for the positions of
Field Office Inspector in Charge, Grade ISLE-15, located in St. Paul,
Minnesota, and Kansas City, Missouri.
At the conclusion of the investigations, 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 final decision.
In its FAD, the agency consolidated these complaints. The FAD concluded
that complainant failed to establish a prima facie case of race or sex
discrimination in regard to each of the non-selections. In reaching
this conclusion, the agency found that complainant failed to present
evidence of similarly situated individuals outside of his protected
classes who were treated more favorably under similar circumstances.
The FAD found that even assuming arguendo that complainant established a
prima facie case of race and sex discrimination, the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant.
In regard to each non-selection, the selecting official explained the
proficiencies of the selectees' and the deficiencies of complainant's
applications. Generally, the selecting officials lauded complainant's
accomplishments but noted how the selectees were better qualified.
The FAD ultimately concluded that complainant failed to establish that
the agency's legitimate, nondiscriminatory reasons for its actions were
pretext for any of the alleged bases of discrimination.
On appeal, complainant states that �since June 1994, I have applied for
twenty-seven higher level positions. I was recommended for eighteen
positions and not recommended for nine positions. I have requested
seventeen detail and developmental opportunities. I received one of
the seventeen positions.� The agency requests that we affirm its FAD.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
To prevail in disparate treatment claims such as these, 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). 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).
After a thorough examination of the record, the Commission finds that with
regard to each non-selection, even assuming arguendo that complainant
established a prima facie case of race and sex discrimination,
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were pretext for
discrimination. In reaching this conclusion, we note that the agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). There is nothing in the
record to show that the agency's actions were a result of unlawful animus
towards complainant's protected bases. Further, we note that complainant
may be able to establish pretext with a showing that his qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). However, complainant has not
done so, nor has he presented any other evidence which contradicts the
testimony of the selecting official and the other officials involved in
the selection, or which undermines their credibility. 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:
September 3, 2003
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations