0120065310
02-27-2007
Tracy L. Steedley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Tracy L. Steedley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01200653101
Hearing No. 250-A-60050X
Agency No. 4-H-3500001-06
DECISION
JURISDICTION
On September 22, 2006, complainant filed an appeal from the agency's
September 7, 2006, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Bulk Mail Clerk at the Main Post Office in Birmingham, Alabama.
In September 2005, complainant applied for a position as a Complaints
and Inquiry Clerk with the Consumer Affairs department. Complainant had
previously held this position until August 2005. As the former Complaints
and Inquiry Clerk, complainant worked under the Manager, Consumer Affairs
and Claims (S1), but complainant filed a grievance against S1 because
she objected to complainant's style of dress.2 Complainant was deemed
qualified for the position that was now being offered and was one of
five applicants selected for an interview.
S1 conducted the interviews. She had a set of standard interview
questions, but altered one for complainant because, unlike the other
interviewees, complainant had held the job before. Paraphrased slightly,
S1 asked whether the fact that complainant left the position because of S1
would compromise complainant's ability to dutifully carry out her tasks.
Complainant resented being asked this question as complainant did not
leave the position solely because of S1, and because S1 did not pose the
question to anyone else. Complainant felt she had wrongly been singled
out.
On October 6, 2005, complainant learned that she had not been selected for
the position and that instead, two individuals with far less experience
were selected. Complainant believes that her 7 1/2 years in the position
made her the best qualified for the job. One of the selectees, E1,
had only 3 months experience in the job at the time she was selected.
According to complainant, the other selectee, E2, had started working
at the Post Office merely 5 1/2 months before complainant joined the
Consumer Affairs office, implying that complainant has more experience
in the position than E2's entire experience with the agency.
On January 6, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of race (Caucasian) when she was
not selected for the position of Complaints and Inquiry Clerk at the
Birmingham Post Office.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently the AJ dismissed the matter,
remanding it to the agency for a final decision. In his remand
Notice, the AJ stated that complainant had failed to submit "any of
the information described in the [Scheduling Order], nor requested
an extension of time, within which to provide such information."
AJ's Notice at 2 (emphasis in original). The AJ further stressed that
"to hold a hearing where there is no indication that the complainant
(who has the burden of persuasion) will call any witnesses, would result
in a waste of government resources." Id.
FINAL AGENCY ACTION
Upon receipt of the case file, the agency issued a final agency decision
in which it found no discrimination. Although the agency determined that
complainant had established a prima facie case of racial discrimination,
the agency found that S1 provided legitimate, non-discriminatory reasons
for not selecting complainant. Specifically, S1 explained that she
followed the agency's Situation/Tasks/Actions/Results (STARS) format and
evaluated comprehensively each application and interview performance.
According to S1, complainant did not give a very good interview, and
when complainant worked in the Consumer Affairs office, she had failed
to follow instructions and received complaints from customers about
her conduct. Complainant also displayed difficulties accepting S1's
authority because she became very upset with S1 after S1 admonished her
about her work attire, tone of voice and work performance. In considering
complainant's response to S1's explanations, the agency found that
complainant had failed to prove that S1's reasons were a pretext to
discriminate against her. According to the agency, complainant had
not shown she was a superior candidate to either E1 or E2 because their
qualifications were more or less comparable to hers.
CONTENTIONS ON APPEAL
Complainant submitted a copy of a Track/Confirm - Intranet Item Inquiry
with a handwritten notation indicating that the AJ had indeed timely
received her case information packet. However, the purported date
of delivery is cut off, and it is impossible for us to determine when
and if the material was properly delivered. As such, we cannot accept
this document as proof of delivery. As for her arguments on appeal,
complainant admits that she has vocalized frustrations at the office
when she held the position in Consumer Affairs, but she maintains that
her outbursts were justified given her work circumstances. She states,
"I don't see anything wrong with releasing stress as long as you
don't release it on anyone else." Statement on Appeal at 3. She also
acknowledges that she has received at least one complaint from customers,
but she excuses herself stating that the complaint was not timely raised
to her attention and that anyway, "one complaint [from over 25 customers
a day was] not bad odds." Id. She left the Consumer Affairs job in
August 2005 in part because S1 was "picking on her," complaining about
her short skirts and her attitude. Complainant insists she was the
most qualified candidate for the position because of her 7 1/2 years of
experience in the position. She states that she even trained E1 when
E1 did a detail in the office. Complainant believes her non-selection
was racially motivated because S1 and the two selectees are black.
In response, the agency submitted an opposition brief in which it
reiterates the arguments it made in its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision 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. See 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
To begin, we note that the AJ did not err in remanding this matter
to the agency for a final decision. The AJ gave clear instructions
to complainant on the information he required to conduct a hearing.
See Scheduling Order. The AJ also gave complainant sufficient time to
comply with his instructions. See id. If complainant had difficulty in
any way complying with the AJ's instructions, it was her responsibility
to contact the AJ and make her concerns known. Complainant did not do
this. As such, it was properly within the AJ's authority to dismiss the
hearing request and remand the matter to the agency as an AJ is afforded
broad discretion in the conduct of the hearing and related proceedings.
See 29 C.F.R. � 1614.109.
Turning now to the merits of the case, we note that to prevail in a
disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. See Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on
the facts of the particular case. See McDonnell Douglas, 411 U.S. at 804
n.14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
We shall assume for purposes of discussion that the agency is correct
in finding that complainant established a prima facie case of race
discrimination. Turning therefore to the second step in the analysis -
whether management articulated a legitimate, non-discriminatory reason
for its action - we find that it has. S1 explained that she followed
STARS agency protocol in evaluating each applicant. Although complainant
clearly had experience in the position, she also had customer complaints
among other documented job performance concerns, which S1 considered in
making her final decision. In addition, complainant's poor interview
performance also disadvantaged her. According to S1, complainant became
visibly upset when S1 discussed complainant's attire and tone of voice.
See Affidavit B. With regard to the alleged improper interview question,
we find nothing wrong with asking an employee who is interviewing for a
position which she previously held but left due to disagreements with a
supervisor, whether working with the supervisor again would compromise
her ability to carry out her duties. The question was not asked of other
candidates because no one else had previously held the position and left
under the same or similar circumstances as complainant. In this light,
we find the question to have been reasonable and necessary to ensure
the agency hires an employee who will be a proper fit in the department.
We find that these reasons suffice under the McDonnell Douglas test as
these explanations are legitimate and non-discriminatory on their face.
The final step in the analysis requires us to evaluate whether complainant
presented evidence showing that management's reasons for not selecting her
were merely a pretext to discriminate against her. In a non-selection
case such as this, a complainant may establish pretext with a showing
that her qualifications were plainly superior to those of the selectee.
See Burchfield v. Dep't of Treasury, EEOC Appeal Nos. 01970152, 01941579
(Apr. 6, 2000). Having more years of experience than the selectee,
however, does not necessarily make an individual more qualified for a
job. See, e.g., Collins v. Dep't of Treasury, EEOC Request No. 05A41248
(Oct. 5, 2004). Complainant must show more credentials for the position
than just years of experience. As such, her main argument that she is
more qualified because she held the position at issue for 7 1/2 years
- many more years than either E1 or E2 - is insufficient to meet her
burden of proof without additional evidence. We remind complainant
that subjective belief, however genuine, does not constitute evidence
of pretext. See Mroz v. Dep't of Defense, EEOC Appeal No. 01A33187
(Jan. 23, 2004). "Absent proof of a demonstrably discriminatory motive,
a tribunal may not second-guess and employer's personnel decision."
Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180,
1183 (D.C. Cir. 1996) (pretext not shown even where employer misjudged
relative qualifications of admittedly qualified applicants) (citation
omitted); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th
Cir. 1982) (noting that "the question is not whether the employer made the
best, or even a sound, business decision; it is whether the real reason
[was discriminatory]). Without evidence of intentional discrimination,
complainant cannot succeed on her claim.
CONCLUSION
Therefore, having reviewed the record and considered the arguments on
appeal, we find no error in the agency's final decision. Complainant has
failed to prove her claim. As such, we affirm the agency's decision.
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
February 27, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Complainant did not pursue this grievance after she filed it because she
left the position and started a new job with the agency. See Statement
on Appeal.
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0120065310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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