0120112378
06-06-2012
Jan C. Meyer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Jan C. Meyer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120112378
Hearing No. 560-2009-00109X
Agency No. 6W-000-0011-08
DECISION
On April 1, 2011, Complainant filed an appeal from the Agency's final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant began working at the Agency in 1975, and since 1987 worked as a Senior Accounting Specialist at the Accounting Service Center in St. Louis, Missouri. In March 2008, she applied for a Senior Accounting and Control Specialist position and was one of nineteen applicants found eligible. A "promotion board" was convened to rank the applicants. The rankings were based on the numerical score each applicant received for answers to eleven questions concerning the position's requirements and the individual's score on a Standardized Accounting Test. The four top scoring candidates were referred to the selecting official. Their scores were 73.2; 67.4; 66.2; and 65.6. Complainant, who had the next highest score (62), was not referred.
On September 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (White) and age (56) when she was not selected for the Senior Accounting and Control Specialist position. At the conclusion of the investigation, the Agency provided Complainant 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, and the AJ held a hearing on January 18, 2011, and issued a decision on January 21, 2011.
In her decision, the AJ first noted that two of the referred candidates were Black and were approximately eight years younger than Complainant, one was White and eleven years younger, and one was Black and 21 years younger. This latter individual, whose score was 67.4, became the selectee. The AJ found that Complainant had established a prima facie case of race and age discrimination, but she characterized the inference as extremely "weak," given that a large majority of the nineteen original applicants were neither White nor as old as Complainant.
Nonetheless, the AJ then determined that the Agency articulated a legitimate, non discriminatory reason for its action. Specifically, the top ranked applicants were referred. The AJ noted that the record included all of the nineteen application packages, all documentary evidence upon which the promotion board relied as well as the rating sheets compiled by the panel members. The AJ determined that the Agency adequately explained its decision not to select Complainant, thus providing her with a fair opportunity to demonstrate pretext.
With regard to pretext, the AJ examined Complainant's arguments in great detail. Complainant argued that she should have received higher ratings on her responses to the position's requirements. The AJ reviewed each requirement and both the selectee's and Complainant's responses and concluded that there was nothing "erroneous" or "without foundation" in the panel's ratings. The AJ also dispensed with Complainant's argument that her years of service made her better qualified by noting that Complainant's score on the Standardized Accounting Test was equal to the score the selectee received and equated to two points, which the AJ described as "hardly a stellar advancement of her cause." The AJ concluded that if experience and education level were, in isolation, valid markers of qualification, Complainant should have received a much higher score on the standardized test.
Complainant also argued that there was a trend toward the referral of younger Blacks. The AJ found that there arguably was such a trend but that given the composition of the applicant pools for the seven vacancies identified by Complainant and Complainant's failure to supplement the record with any statistical evidence from an expert, this trend did not in and of itself establish unlawful discrimination. The AJ also found the fact that the panel members and the selecting official knew the selectee did not prove that she was unlawfully "pre-selected." Finally, Complainant argued that the point system used to rate the applicants was "loose" and lacked precision. The AJ again noted that the Standardized Accounting Test was in fact a very precise measurement tool that all the applicants had to take, and Complainant performed very poorly on it, thus undermining her claim that had the rating system been "tighter," she would have been more successful. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
STANDARD OF REVIEW
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Upon review of the record, we discern no basis to disturb the AJ's thorough and reasoned decision. Complainant has not introduced any documentation or other objective evidence that would undermine any of the AJ's credibility determinations, and substantial evidence in the record supports the AJ's conclusion that management's actions towards Complainant were not motivated by unlawful animus towards her protected bases. While we do acknowledge Complainant's tenure with the Agency and the frustration she felt in not being promoted, this record simply does not support a finding that the Agency violated Title VII or the ADEA. For these reasons, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 6, 2012
__________________
Date
2
0120112378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013