Tracy L. Steedley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120065310 (E.E.O.C. Feb. 27, 2007)

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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