01961995
01-05-1999
Timothy J. Zielinski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
Timothy J. Zielinski v. United States Postal Service
01961995
January 5, 1999
Timothy J. Zielinski, )
Appellant, )
)
v. ) No. 01961995
) Agency No. 4-H-350-1341-94
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest), )
Agency. )
______________________________)
DECISION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (EEOC) challenging the final agency decision of the United
States Postal Service, (agency) concerning his complaint in which he
alleged unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted in accordance with EEOC Order No. 960.001.
At the time this complaint arose, appellant was employed with the agency
as a Distribution Window Clerk, PS-05. In a formal complaint, appellant
alleged that the agency discriminated against him on the bases of his
race (Caucasian), color (white), and sex (male) when he was not selected
for Postmaster, EAS-11, in Malcolm, Alabama or Postmaster, EAS-13,
in Magnolia Springs, Alabama. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested a hearing with an EEOC administrative judge (AJ).
However, appellant subsequently withdrew his request, opting, instead for
a final agency decision. Upon remand from the AJ, the agency conducted
a supplemental investigation. Thereafter, the agency issued a final
decision finding no discrimination.
In its final decision dated December 12, 1995, the agency concluded that
appellant established a prima facie case on all bases alleged because the
successful applicant comparison for the Postmaster position in Malcolm was
a Black female, and the successful applicant comparison for the Postmaster
position in Magnolia Springs was a White female. However, the agency
determined that appellant did not successfully rebut the Manager of Post
Office Operations (Selecting Official for both positions, SO)(Caucasian,
female) legitimate reasons for selecting the two female comparisons for
the positions. Specifically, the SO stated that the selections were based
on qualifications and how the applicants answered technical questions
during their individual interviews. She further stated that PS Form
991 showed that appellant was qualified for both positions. However,
appellant did not do well on the interview because he either answered
questions incorrectly or not at all. Consequently, he was not considered
the best qualified for the position. On the other hand, the comparison
selectees were fully qualified and exhibited superior knowledge in the
interview portion of the promotion process; "they aced the interview and
knew exactly what they were talking about and how to apply the knowledge
to the job. Neither [appellant], nor any other candidate, did nearly
as well." Based on this evidence, the agency determined that there was
no evidence to support appellant's complaint. Therefore, it concluded
that appellant did not prove that the agency discriminated against him.
On appeal, appellant contends that his qualifications were superior in
comparison to the selectees. He also, asserts that the SO's record
of promoting white males is "indicative of a manager who harbors
discriminatory motives." Finally, appellant contends that the selectees
were being groomed for the postmaster positions.
Following the standards of proof established by McDonnell Douglas
Corp. v. Green, 411 U. S. 792 (1973); Texas Dept. Of Community Affairs
v. Burdine, 450 U.S. 248 (1981), appellant must show that the agency's
articulated reasons for not selecting him for either of the two postmaster
positions are pretext for discrimination. This can be accomplished either
by establishing that the stated reasons were not the actual motivation for
the action taken or by showing that the agency's explanation is unworthy
of credence. Burdine, 450 U.S. at 254 (1981). At all times, appellant
retains the ultimate burden of persuasion, and it is his obligation to
show, by a preponderance of the evidence, that the agency acted on the
basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 113
S. Ct. 2742, 2749 (1993), citing U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256.
Based on the record before us, the Commission finds that appellant has
failed to prove that the agency's articulated reasons for selecting the
selectees were pretext for unlawful discrimination. First, our review
of the record does not reveal that appellant's qualifications were
plainly superior to those of the selectees. See Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981). Both appellant and the selectees were
well qualified for the position at issue. In this case, the selectees
were viewed as performing better on the interview by successfully
answering all technical questions that were presented to all candidates.
The Commission notes that the agency has the discretion to choose from
among candidates with different but equally desirable qualifications
so long as the decision is not based upon an unlawful motivation.
Canham v. Oberlin College, 666 F.2d 1057 (6th Cir. 1981); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 258-59. In this case,
the record reveals no evidence of unlawful motivation.
Second, with regard to the SO's record for promoting white males, the
record revealed that thirty postmaster selections were made by the SO.
Among the thirty postmaster positions, twelve Caucasian males were
selected, five African-American Males, nine Caucasian females and
two African-American females. Appellant further asserts that the SO
record regarding male employees (seventeen) is misleading because due
to reorganization actions in the agency, nine of the seventeen male
employees were without jobs. As of result of this reorganization,
the male dislocated employees were placed on a placement list to fill
vacancies. Thus, appellant contends that the individuals place on the
list did not compete for jobs and "would have been offered a job no
matter who was in office." Therefore, appellant argues that once you
subtract the nine men on the placement pool list, the SO only selected
eight males instead of the proffered seventeen. Even if this were true,
the Commission does not find that this evidence shows that the SO promoted
a disproportionate amount of white male employees (eight) compared to the
number of black female employees (two) or white female employees (nine).
Third, we note that interviews by their very nature, inject an element
of subjectivity into a selection process. However, subjective factors
alone do not make a selection discriminatory. Appellant must show
that the selecting officials were improperly motivated. We find that
appellant has not done this. Furthermore, contrary to appellant's
contentions, a preselection does not violate Title VII when it is based
on the qualifications of the preselected party and not on some basis
prohibited by Title VII. See Goostree v. State of Tennessee, 796 F.2d
854, 861 (6th Cir. 1986); and Marvin v. Secretary of Veteran's Affairs,
EEOC Appeal No. 0181677 (July 12, 1989). Appellant has not presented
any persuasive evidence on appeal which would further support his claim.
Therefore, we find that he has failed to prove, by a preponderance of
the evidence, that the agency discriminated against him as alleged.
In accordance with this decision, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
finding that it did not discriminated against appellant on the bases of
race/color or sex when he was not selected for two postmaster positions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is
received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations