Terry L. Burns, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2004
01A44356_r (E.E.O.C. Sep. 28, 2004)

01A44356_r

09-28-2004

Terry L. Burns, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Terry L. Burns v. United States Postal Service

01A44356

September 28, 2004

.

Terry L. Burns,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44356

Agency No. 1C-171-0001-02

Hearing No. 170-A2-8407X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning his 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 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.

The record reveals that complainant was as a trainee in the Associate

Supervisor Program (ASP) at the agency's Harrisburg Processing &

Distribution Center in Harrisburg, Pennsylvania, filed a formal EEO

complaint on December 20, 2001, alleging that the agency discriminated

against him on the bases of sex (male) and age (D.O.B. 3/16/48) when<1>:

(1) he was issued a Notice of Separation, effective August 30, 2001, as a

result of his disqualification form the Associate Supervisory Program; and

(2) the agency interfered with the processing of his unemployment

compensation claim.

The record reveals that complainant, a retired state police officer,

was competitively selected to participate in the agency's Associate

Supervisor Program (ASP), along with 12 other candidates. The record

further reveals that the ASP began on June 16, 2001. The 12 candidates

were divided into 2 groups based on their tours or shift preferences.

Both groups attended weekly classroom instruction and on-site training.

Complainant's group included 6 males, while the other group included

4 males and 2 females. The male participants in complainant's group

ranged in age from 32 to 50 years. The male candidates in the second

group ranged in age from 25 to 48 years.

The record reveals that a total of 5 or more points was required to

pass the first 8-week period in the ASP; and that the 5 or more points

were to be obtained by combining the average scores of (a) weekly

evaluation scores and (b) the score of the test taken at the end of the

8-week period. The record further reveals that the 8-week test was an

objective test scored outside of the agency by a national testing center.

Complainant's average weekly evaluation score for the first 8-week period

was a 2.9. Complainant received a score of 2 on the test taken at the

end of the first 8 weeks which resulted in his receiving a total combined

average score of 4.9, and he was disqualified from the ASP. The record

reveals that three other candidates in complainant's group failed the

first 8-week period of the ASP and were disqualified. These three

candidates were males and under the age of 40. The record reveals that

two candidates in the other group failed the 8-week period of the ASP and

were disqualified. The record reveals that both candidates were males;

and one was over the age of 40 and the other one was under the age of 40.

On March 4, 2002, the agency issued a document identified as "Partial

Acceptance/Partial Dismissal of Formal EEO Complaint" of complainant's

complaint. Therein, the agency accepted claim (1) for investigation.

The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim. Specifically, the agency stated that claim

(2) was a collateral attack on proceedings in other forums and therefore

did not state a claim within the EEO process.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following the March 4, 2004 hearing, the AJ

issued a decision finding no discrimination (claim (1)).

The AJ concluded that complainant failed to establish a prima facie

case of sex or age discrimination. Assuming that complainant could

establish a prima facie case of discrimination, the AJ concluded that

the agency articulated legitimate, nondiscriminatory reasons for its

actions which were not persuasively rebutted by complainant. The AJ

noted in his testimony, the ASP coordinator testified that there

was a joint decision to divide the ASP candidates into two groups

"in order to make it easier for those in those groups to hear and

understand and get more chance to work better and to learn faster."

The ASP coordinator further testified that national test center (NTAC)

certified personnel administered the test and that the scoring was done

outside of the postal facility. The ASP coordinator testified that he

was responsible for tallying the scores of the candidates' evaluations.

The ASP coordinator testified that he was in contact with a national ASP

overseer on a daily basis because the overseer wanted "to ensure that

I evaluated the evaluations correctly and did the proper averaging and

to just ensure that everything was done properly." The ASP coordinator

testified that all of the candidates were given the same materials and

opportunities to pass the test.

Furthermore, the AJ noted in his affidavit, the ASP Coordinator denied

saying that the test was a pass/fail system. The ASP Coordinator further

stated that the ASP scoring system consists of a combination of the

candidates' test scores and average weekly evaluation scores "which

must add up to at least 5 total points." The ASP Coordinator stated

that complainant's weekly evaluation scores averaged 2.9, and that "this

score added to the test score was 4.9." The ASP Coordinator stated that

the scoring system is outlined in detail in the ASP Coordinator's guide,

under Sections 9.2 and 9.3. Moreover, the ASP Coordinator stated that

the "same requirement was used for all members of the class. Exams are

scored by NTAC and not available for review."

With respect to complainant's claim that the evaluators were told by

the acting Senior Manager of Distribution Operations (acting Senior

Manager) or upper level management that candidates were not to receive

weekly evaluation scores of 4 (the highest possible score for the weekly

evaluation), the AJ found there was some dispute as to whether or not the

acting Senior Manager actually passed down the instructions through the

ASP Evaluator. The AJ, however, found that any dispute in that regard was

immaterial, as the acting Senior Manager admitted in her testimony that

she had expressed her opinion that none of the candidates should receive

a score of 4 at that point in the ASP program to the ASP Evaluator.

With respect to complainant's claim that the acting Senior Manager

made age references to him on two separate occasions, the AJ found

that complainant failed to provide evidence to support his contentions.

Specifically, the AJ noted in her testimony, the acting Senior Manager

testified that someone in complainant's group asked a question regarding

what is it like to be out on the work room floor working as a line

supervisor, and that the acting Senior Manager had stated that she would

have concerns if she started out on the workroom floor all day, at her

age (51). However, the AJ noted that the acting Senior Manager made the

comment in reference to herself. Regarding complainant' s argument that

the acting Senior Manager referred to his group as the "testosterone

group," the AJ noted that in her testimony, the acting Senior Manager

testified that she visited complainant's group one evening to see how

they were doing and that "the gentlemen in the room were talking about

snow blowers, tractors...And I said, wait, there's just way too much

testosterone in this room and that was the statement I made." The AJ

noted that the acting Senior Manager further testified that the use

of the testosterone group was used in a joking manner, and never in a

derogatory manner.

The agency's final action implemented the AJ's decision.

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 conclusion of law are subject to a

de novo standard of review, whether or not a hearing was held.

Assuming that complainant established a prima face case of sex and age

discrimination, the Commission finds that the AJ's decision properly

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws (claim (1)). We note that complainant failed to

present evidence from which discriminatory intent could be inferred,

and further, failed to present evidence to establish that the agency's

proffered reasons were a pretext for unlawful discrimination.

We discern no basis to disturb the AJ's decision. 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 agency's final action.

Finally, with respect to claim (2), we find that the agency in its

partial dismissal dated March 4, 2002, properly dismissed this claim

pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

We note complainant, on appeal, stated that the agency �falsely reported

to the Department of Labor Unemployment Compensation Officials that he was

discharged for misconduct and that the Agency contested benefits.� We

note that complainant further stated that the agency's contest �was not

substantiated and benefits were eventually awarded.� The Commission has

long held that a complainant cannot use the EEO complaint process to lodge

a collateral attack on other forums. See Moore v. United States Postal

Service, EEOC Request No. 05A10781 (May 30, 2001); Reloj v. Department

of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (claim

that agency's provision of false information to the OWCP fails to state

a claim). The proper forum for complainant to have raised his challenges

to actions which occurred during the unemployment compensation process

was in that forum. It is inappropriate for complainant to attempt to

use the EEO process now to collaterally attack actions which occurred

during the unemployment process.

Accordingly, the agency's final decision dismissing claim (2) for failure

to state a claim was proper and is AFFIRMED.

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

September 28, 2004

__________________

Date

1For purposes of clarity, the Commission has

numbered complainant's claims as claims (1) and (2).