0120102839
04-13-2012
Ricardo U. Dopwell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Ricardo U. Dopwell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120102839
Hearing No. 490-2009-00112X
Agency No. 1H-372-0012-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 18, 2010 final order concerning his 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics Technician at the Agency's Processing and Distribution Center in Chattanooga, Tennessee. The Agency posted a vacancy announcement for a Maintenance Operations Supervisor open from April 15, 2008 through April 30, 2008. Complainant applied for the position on April 23, 2008. The selecting official (SO) accepted another employee's noncompetitive application for a voluntary lateral reassignment into the position. The selectee had worked as a Distribution Operations Supervisor since 2001, while Complainant had served as an Assistant Supervisor of Maintenance trainee since 2003.
On November 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on or about July 22, 2008, the Agency failed to select him for the position of Supervisor, Maintenance Operations. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion and issued a decision without a hearing on June 3, 2010.
The AJ initially determined that Complainant had established a prima facie case of discrimination and that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, SO determined that prior supervisory experience was the most important consideration in filling the supervisory position and the selectee had supervised employees for at least seven years. Further, contrary to Complainant's assertions, the selectee possessed experience in maintenance from her work at the Agency and her prior work experience. Conversely, Complainant worked within the supervisory training program for five years and in the maintenance field for over 20 years. A supervisory position requires the candidate to spend at least 50% of his time directing, scheduling, and managing employees. The AJ concluded that it was not unreasonable for SO to choose a candidate readily able through prior experience to fill the vacant supervisory slot. Additionally, the AJ determined that the Agency had followed its policies and procedures in filling the position noncompetitively.
The AJ determined that Complainant had presented no evidence establishing that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order fully adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing. Specifically, Complainant argues that the process was rigged to prevent him from being selected. Further, Complainant argues that the selectee was not qualified for the position. because she only had eight months of experience in the Maintenance Operations Department. Additionally, Complainant claims that racial animosity towards him has existed since he began working in Chattanooga in 1999. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact, 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission notes that when a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr, 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248. 256 (1981).
In the instant case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. SO affirmed that she elected to fill the position by a voluntary lateral reassignment in accordance with the Employee and Labor Relations Manual. ROI, at 126. SO confirmed that she considered the candidates' ability to meet the qualifications and requirements of the supervisor position, prior supervisory experience, and demonstrated communication and team-building abilities. Id. SO asserted that she ultimately decided to accept the selectee's noncompetitive application for a voluntary lateral reassignment because she deemed supervisory experience the most important factor in the selection process. Id. The concurring official affirmed that he agreed with SO's selection and that Complainant was not the best qualified candidate for the position. ROI, at 164.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory event, Complainant now bears the burden of establishing that the Agency's stated reasons are a pretext for discrimination. Shapiro v. Soc.Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that his qualifications are "plainly superior" to those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext in non-selection cases.
In attempting to establish pretext, Complainant contends that the selectee was allowed to fill the Maintenance Operation Supervisor position during the selection process which violated the Employee and Labor Relations Manual. That provision states that temporary assignments to higher-level vacant positions pending permanent placement is limited to no more than 120 calendar days. SO affirmed that the selectee's detail assignment to the position past the 120-day limit was permitted because the limitation does not apply when the assignment is to the same or a lower-level position. ROI, at 133. The selectee's prior position was at the same level as the position at issue. Id.
The Commission notes that an employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Construing the evidence in the light most favorable to Complainant, the Commission finds no evidence in the record which would support a finding that the Agency's selection or the selection process were tainted by discriminatory animus or that the reasons articulated by the Agency for its actions were mere pretext to hide unlawful discrimination. The record reveals that SO and the concurring official placed a high priority on prior supervisory experience in its selection decision. While Complainant was previously an acting supervisor, the record reveals that the selectee had been a Distribution Operations Supervisor since 2001. Thus, the Commission concludes that Complainant's qualifications are not such that they undermine the Agency's explanation. Accordingly, the Commission finds that Complainant has failed to show that he was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
April 13, 2012
Date
2
0120102839
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102839