01a03125
02-13-2001
William P. Stanlonis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William P. Stanlonis v. United States Postal Service
01A03125
February 13, 2001
.
William P. Stanlonis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03125
Agency No. 60-0219-93
DECISION
The 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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. The complainant
alleged that he was discriminated against on the bases of sex (male)
and age (51) when on November 16, 1992, he was not offered a position
within the Windsor, CT Facilities Service Center (FSC) and therefore
was forced to retire.
The record reveals that at the time of his retirement, which occurred
during the Postal Service Restructuring, the complainant had not yet
been placed in a permanent position. His former position of Senior Real
Estate Specialist was abolished during the nationwide agency restructuring
which was announced during August 1992. The record further shows that
the agency offered an early retirement plan and that those accepting a
retirement option by November 20, 1992, received a lump sum equal to
six months pay. The complainant admits that he accepted a retirement
option in September 1992. Believing he was a victim of discrimination,
the complainant sought EEO counseling and subsequently filed a formal
complaint on January 4, 1993. Subsequent to an investigation, the
complainant was advised that inasmuch as his claim was a mixed complaint
he would be issued a final decision (FAD) within 45-days of receipt of
the investigative file. The appeal rights provided the complainant with
the right to appeal the agency's FAD to the Merit Systems Protection Board
(MSPB) or file a civil action within the time frames noted.
The complainant appealed his mixed case complaint to the MSPB on December
8, 1993, and on June 14, 1994, a MSPB administrative judge (AJ) ruled
that the complainant's retirement constituted a constructive removal.
The MSPB AJ also found that while the complainant was a victim of
misleading information, there was no evidence that he was a victim of
intolerable discriminatory harassment or coercion. The agency petitioned
the full Board for review of the decision based on the Board's lack
of jurisdiction.
The full Board reversed the AJ's decision finding that the Board lacked
jurisdiction over the case because the complainant's retirement was
voluntary. The complainant appealed the full Board's decision to the
U.S. Circuit Court of Appeals for the Federal Circuit which affirmed
the full Board's decision that it lacked jurisdiction.
Subsequently, the agency issued its FAD, which concluded that
the complainant failed to show a prima facie case of sex or age
discrimination and assuming that he had made the prima facie case,
the agency had articulated legitimate non-discriminatory reasons for
its actions and that the complainant failed to show those reasons were
a pretext for discrimination. Specifically, the agency found that of
the nine Real Estate positions filled at the FSC, seven were filled with
male employees and four were between the ages of 40-45, two were between
the ages of 46-50 and one was between the ages of 51-55. Accordingly,
the agency found that the complainant failed to show a prima facie case
of sex or age discrimination.
In its FAD, the agency further found that assuming arguendo that the
complainant had shown a prima facie case of discrimination, that it had
articulated legitimate non-discriminatory reasons for not selecting
the complainant. Specifically, the agency found that the management
official (MO) responsible for filling the nine positions in the FSC
averred that each employee's PS Form 991, their Knowledge, Skills and
Abilities (KSA) and verbal input from managers was utilized in making the
placement decisions. The MO further averred that the greatly reduced
number of positions and the complainant's �Adequate� ratings in his
KSAs, as compared to the selectee's higher ratings were also reasons why
the complainant was not offered a position. Finally, the agency found
that the complainant failed to show that its articulated reasons were
a pretext for discrimination and therefore, his constructive discharge
claim must fail.
On appeal, the complainant contends that his knowledge, skills and
abilities were far superior to three comparatives who were given positions
in the FSC, that comparative 2 (C2) was considered for more than the one
position he was considered for and that management faithfully carried out
the Postmaster's purpose in the restructuring, that is the protection
of female and younger employees. The agency requests that we affirm
its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission disagrees with the agency that the complainant failed
to establish a prima facie case of age discrimination because the
record shows that eight of the nine real estate positions filled by the
agency, including the one for which he was considered, were filled with
individuals younger than he. Moreover two of the positions, including
the one for which he was considered, were filled with females, thus
establishing a prima facie case of discrimination on the basis of sex.
The Commission does find that the agency articulated legitimate non-
discriminatory reasons for its actions, as previously stated. The
Commission further finds that the complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the record shows that the complainant is not plainly superior
to the individuals offered positions in the restructured FSC.
The record shows the agency's placement policy required the MO to use a
Requirements-By-Applicant-Matrix, rating the individuals in their KSAs as
�Minimal,� �Adequate� or �Superior.� The record contains the matrixes
used by the MO in filling all nine Real Estate positions. The matrixes
reveal that all nine of the selectees were rated �Superior� on at least
five KSAs while the complainant had ten �Adequate� ratings. Despite the
complainant's allegations that he was plainly superior to comparative 1
(C1) a 36 year old female, the record shows that unlike the complainant
who received ten �Adequate� ratings on the KSAs, C1 received �Superior�
ratings in all ten KSA areas. Moreover, the Commission has previously
held that years of experience do not necessairly make an individual more
qualified to meet the needs of an organization. See Tolly v. Department
of Transportation, EEOC Request No. 05950092 (July 8, 1996).
The Commission does not find persuasive the complainant's contention
that the agency's consideration of C2 (50 year old female) or any
of the other employees, for more than one position, without more,
indicative of discrimination on the basis of sex. Even if a violation
of the agency's placement policy occurred, there is no evidence that
the violation was for the discriminatory reason of complainant's sex.
Further, the record shows that seven of the nine Real Estate positions
were filled with male selectees. We find that the complainant fails to
show that the agency's articulated reasons for not placing him into a
Real Estate position were a pretext for discrimination.
The central question in a constructive discharge case is whether
the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in
the employee's position would feel compelled to resign. Irving v. Dubuque
Packing, 689 F.2d 170 (10th Cir. 1982). The Commission has established
three elements which a complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in the complainant's
position would have found the working conditions intolerable;
(2) conduct that constituted discrimination against the complainant
created the intolerable working conditions; and (3) the complainant's
involuntary resignation resulted from the intolerable working conditions.
See Walch v. Department of Justice, EEOC Request No. 05940688 (April 13,
1995). As the complainant failed to establish that he was subjected to
discrimination, he cannot meet the second of these elements and therefore
cannot substantiate his claim of constructive discharge.
Therefore, after a careful review of the record, including the
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 (M0900)
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 13, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.