01A03705
10-30-2002
Van P. Bledsoe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Van P. Bledsoe v. United States Postal Service
01A03705
10-30-02
.
Van P. Bledsoe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03705
Agency No. 4-H-390-0153-98
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., 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. 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 Supervisor, Customer Service at the agency's Post Office in Madison,
Tennessee. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 17, 1998, alleging that he was discriminated
against on the bases of race (Caucasian), sex (male), color (White),
and age (D.O.B. July 20, 1948) when he was not selected for the position
of Postmaster at the Starkville, Mississippi, facility. Complainant
maintains that the selecting official (SO: African American, Black,
female, DOB: September 30, 1954) awarded the position to the selectee
(S: African American, Black, female, DOB: May 13, 1942) because the two
were friends. He contends that since they were both the same race, color,
gender, and approximate age, S and SO were able to communicate on a more
common and personal basis without any social, racial, and gender barriers.
He further contends that S gave SO the sum of $500.00 in exchange for
being selected for the position.
A review of the record reveals that SO was issued a Notice of Removal
from the agency for various ethical infractions. The removal action was
subsequently upheld by the Merit System Protection Board. The record
further reveals that the agency also conducted two separate investigations
into allegations that SO accepted money from subordinate employees.
According to the Human Resources Manager (RMO: Caucasian, White,
male, DOB: January 25, 1952) neither investigation revealed that SO's
selections, including the selection of S, were influenced by monetary
contributions from the selectees. RMO further noted that S had twelve
years more experience with the agency than did complainant, she had two
and-a-half more years of managerial experience, and she had received
more training than complainant, as well as performing more community
service than complainant.
At the conclusion of the investigation, 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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD,
the agency concluded that complainant failed to establish a prima facie
case of discrimination under any of his claimed bases. The agency,
however, did not provide a rationale for its finding.
Complainant makes no new arguments on appeal. The agency requests that
we affirm its FAD.
We note initially that, in the absence of direct evidence of
discrimination, the allocation of burdens and order of presentation of
proof in a Title VII case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (applying McDonnell
Douglas to age cases). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of discrimination in
the nonselection context by showing that: (1) he is a member of a
protected class; (2) he was qualified for the position; (3) he was
not selected for the position; and (4) he was accorded treatment
different from that given to persons otherwise similarly situated who
are not members of his protected group or, in the case of age, who are
considerably younger than he. Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998); Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002
(September 18, 1996). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Given that S is more than six years older than complainant, the
Commission agrees with the agency's determination that complainant
failed to establish a prima facie case of age discrimination. However,
we find complainant established a prima facie case of discrimination
based on race, color, and sex. The burden next shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Burdine, 450 U.S. at 253. We find that the agency has successfully met
this burden based on RMO's contention that S had more experience than
complainant. The burden thus returns to the complainant to demonstrate,
by a preponderance of the evidence, that the agency's reason was
pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Id.; St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reason for its action was
a pretext for discrimination. In reaching this conclusion, we note that
in nonselection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer
has the discretion to choose among equally qualified candidates. Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). The record
reveals that complainant had some years of college, while S completed a
typing course and a customer service course at a junior college. However,
given the fact that complainant had twelve years less experience with
the agency, two and-a-half less years of managerial experience, and had
received less agency training than S, complainant has not shown that
his qualifications were demonstrably superior. Furthermore, complainant
also alleges that S obtained her position through her friendship with SO,
and because she paid S the sum of $500.00. Assuming arguendo the truth
of these allegations, such behavior, while unfair, does not constitute
illegal discrimination under the laws administered by this Commission.
Finally, complainant has not otherwise met his burden of showing, by a
preponderance of the evidence, that illegal discrimination occurred.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___10-30-02_______________
Date