01A34018
06-30-2004
Yvonne M. Keahi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvonne M. Keahi v. United States Postal Service
01A34018
June 30, 2004
.
Yvonne M. Keahi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34018
Agency No. 4F-967-0023-01
Hearing No.
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 order.
The record reveals that complainant, a Customer Services Supervisor
at the agency's Main Office Station, in Honolulu, Hawaii, filed a
formal EEO complaint on August 7, 2001, alleging that the agency had
discriminated against her on the combined bases of sex, race/national
origin (Hawaiian), and age (D.O.B.3/14/46) when she was not selected for
the position of Station Manager, EAS-21, at Waialae Kahala Post Office
on or about February 27, 2001.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The agency's final order implemented the AJ's decision.
ANALYSIS AND FINDINGS
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). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The record reflects
that the review panel, after considering all the application files,
was to recommend 3 names to the selecting official. (IE Affidavit E).
The record also reflects that complainant had 22 years of post office
experience and 13 years of managerial experience whereas the selectee had
15 years of experience in the postal service and one year of managerial
experience. (IE 5;6A). According to the panel members, there was
a tie in scores between complainant and the selectee. (HT 72; 117).
Although one panel member testified that she rated complainant highly
in her choices, another panel member did not. (Hearing Transcript 85,
105). Two panel members testified that the reason the selectee was
recommended over complainant was because the selectee had more recent
safety details than complainant (IE 6A). In reference to the disparity
in years of service, a panel member testified that outstanding service,
not necessarily years of service was significant for this position,
and the selectee was considered a �go-getter.� (HT 21).
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that evidence of the selecting official's possible animus against the
complainant on the basis of her age was irrelevant because the panel
chose to eliminate her from the selection process, not the selecting
official. The record establishes that the selecting official did not
discuss the selection process with the panel members prior to or during
selection. (HT 24-25; 67-68; 90). The AJ determined this testimony was
credible and we do not disturb that decision.
Complainant contends on appeal that she produced sufficient evidence to
prove pretext, that the AJ erred in failing to apply an adverse inference
because the panel board members destroyed their notes pertaining to
the promotion and failed to remember details about complainant's and
the selectee's qualifications. Complainant also contends that the AJ
erred in refusing to allow testimony of certain witnesses, because their
testimony is relevant to the pattern of unfairness and discrimination
in Post Office hiring practices. In response, the agency contends that
complainant failed to prove pretext by a preponderance of the evidence,
which is the position it took in its FAD, and requests that we affirm
its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The record reflects that the AJ admonished the agency to reconsider
its practice of not retaining notes from the panel's deliberations,
as it is predictable that panel members will not be able to recall the
details of their deliberation months or years later. This commission
not only agrees, but reminds the agency that such action could result
in an adverse inference when there is insufficient evidence from which a
fair determination on discrimination can be made. Huey v. Department of
Health and Human Services, EEOC Case No. 01831403 (February 28, 1986).
Since the AJ concluded that there was sufficient evidence in the record
to make a decision on the merits, and this commission agrees with that
decision, we do not make a negative inference in this case.
We note that complainant failed to present evidence that the panel's
failure to recommend her for hire was motivated by their discriminatory
animus toward complainant's sex, national origin/race, and age. Although
complainant presented evidence about possible discriminatory animus on
the part of the selecting official, the AJ was correct in concluding
that this evidence was not liked to the panel's decision, which is
the basis for complainant's claim. We discern no basis to disturb
the AJ's decision. 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 agency's final order.
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
June 30, 2004
__________________
Date