0120062023
12-12-2007
Sherry Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sherry Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200620231
Hearing No. 310-2005-00264X
Agency No. 4G-752-0280--04
DECISION
On February 6, 2006, complainant filed an appeal from the agency's January
30, 2006 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Injury Compensation Specialist, EAS- 16, at the Dallas District
Office, in Coppell, Texas.
On October 3, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of age (D.O.B. 07/31/55) when
she was not selected for the position of Injury Compensation Specialist,
EAS-17.
At the conclusion of the investigation, complainant was provided 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. The AJ held a hearing on December 19, 2005, and
issued a decision on January 19, 2006.
In her decision, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for complainant's non-selection, namely,
complainant's difficulties in dealings with others. The AJ also found
that complainant did not prove, by a preponderance of the evidence,
that these reasons were pretext for discriminatory animus. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged.
On appeal, complainant contends that the AJ erred in determining that
the agency established a legitimate, non-discriminatory reason for
its actions. Specifically, complainant contends that she never had
conflicts in dealing with her co-workers. Complainant also stated that
the AJ improperly gave more credence to the agency's witness than to her.
Complainant further alleged that the AJ's findings are not supported by
the record, and requests that we reverse the AJ's decision finding no
discrimination.
ANALYSIS AND FINDINGS
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.
Applying this standard, the Commission concludes that the AJ's decision
is supported by substantial evidence. That is, the record supports that
the agency based its selection for the position of Injury Compensation
Specialist on the fact that the selectee had better communication and
leadership skills than complainant. Complainant's supervisor's (S1)
testimony, which the AJ found to be credible, reveals that complainant
was not selected because of her lack of skills and abilities to be a
team player, lack of ability to lead staff in a positive manner and her
lack of skills working with her coworkers as equals and part of the team.
S1 testified that complainant had repeatedly demonstrated difficulties in
dealings with others prior to the non-selection in question. S1 stated
that she received complaints from complainant's coworkers regarding
the way that complainant explained things to her fellow specialists,
and her tone of voice in communications with them. S1 asserted that
complainant raised her voice during discussions and slammed doors.
S1 further testified that leadership and team player ability are essential
qualities for the position because whoever was selected would serve as
the acting manager in her absence. Although complainant argues that
her qualifications were superior to those of the selectee, we find
that complainant has not shown that the disparities in qualifications
between her and the selectee are "of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have
chosen the [selectee] over her for the job in question." Ash v. Tyson
Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th
Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
Further, we concur with the AJ's determination that complainant failed
to offer any evidence to show that her age actually motivated the
agency's decision. When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Complainant also challenged the AJ's finding that her supervisor's
explanations for her actions were credible. 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, � VI.B. (November 9, 1999).
We find that complainant did not demonstrate that the AJ's credibility
determination was in error.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission
concludes the AJ's decision finding no discrimination was supported by
substantial evidence in the record. For these reasons, we affirm the
agency's final action.
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
December 12, 2007
_________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120062023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120062023