Danny Hutchins, )
Appellant, )
) Appeal No. 01985988
v. ) Agency No. 1G711100294
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black) and age (45), in violation of
Title VII of the Civil Rights Act of 1964, 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. Appellant alleges he was discriminated
against when, on October 4, 1993, he was not selected for promotion to
the position of Maintenance Operations Supervisor EAS-16 (Position).
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
During the relevant time, appellant was employed as a PS-6 M.P.E. Mechanic
in Maintenance Operations at the agency's postal facility in Shreveport,
Louisiana. Appellant alleges that the Manager of Maintenance Operations,
who was the selecting official for the Position (SO), chose the younger
(34) White selectee (SE) due to favoritism and racial animus.
Appellant sought EEO counseling and, subsequently, filed a complaint
on December 28, 1993. At the conclusion of the investigation, appellant
initially requested a hearing before an EEOC Administrative Judge (AJ),
but then withdrew his request, and asked that the agency issue a final
agency decision. It is from this decision that appellant now appeals.
The FAD concluded that appellant established a prima facie case of race
discrimination, because he was qualified for the Position but not selected
in favor of a White applicant. However, the FAD held that appellant failed
to established a prima facie case of age discrimination, because appellant
did not show that SO knew his age, or that age was a determining factor
in SO's decision not to promote him. The FAD then made a conclusion of
no discrimination on the bases of race and age, finding that appellant
failed to present evidence that more likely than not, the agency's
articulated reasons for its decision were a pretext for discrimination.
The agency offers no statement on appeal, and appellant re-states and
elaborates on arguments previously considered<1>.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), we find that appellant established a prima facie case on
the bases of both race and age. In doing so, with respect to age,
we wish to clarify that in a case alleging discrimination under the
ADEA, appellant need not demonstrate that age was a determinative
factor as part of the prima facie case. Instead, that question is
addressed when the trier of fact makes a decision on the ultimate
issue of discrimination. See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996); Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01961030 (October 25, 1996). The ultimate
burden remains on appellant to demonstrate, by a preponderance of the
evidence, that age was a determinative factor in the sense that “but
for” his age, he would not have been subjected to the action at issue.
See Loeb, supra., and Fodal v. Department of Health and Human Services,
EEOC Request No. 05960344 (October 16, 1998).
However, we concur with the agency's conclusion that appellant failed to
demonstrate that the agency's reasons were a pretext for discriminatory
animus based on race or age. Appellant's primary contention is that he
was far better qualified than SE, and would have been selected for the
Position except for the racial and age animus of SO. However, we note
that a three person panel reviewed applications and interviewed five
applicants for the Position, and recommended appellant and SE to SO as
the best qualified candidates. SO noted that appellant was an excellent
mechanic and technician, but that he lacked the supervisory experience and
leadership ability which SE possessed, and which were heavily weighted
factors in the selection process. We note that although appellant did
have some supervisory experience, the most recent was in 1985, and that he
declined at least one “204B assignment” offered to him by SO which would
have provided him with current and applicable management experience<2>.
By contrast, SE had current and substantial “204B assignment” experience,
and SO was impressed with his performance during these assignments.
Therefore, contrary to appellant's assertion, the evidence does not
clearly establish that his qualifications were plainly superior to
those of SE, thereby supporting a finding of discrimination. See Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (Jan. 16,
1997)(citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1987)).
As evidence of racial animus, appellant also states that no Black
individuals have been promoted or hired at “level 5" since 1986,
and provided a racial profile of Maintenance Operation personnel as
evidence. However, without further evidence to corroborate appellant's
assertion that the “level 5" promotions in question were improper and the
result of race discrimination, we find that this evidence alone is not
sufficient to establish pretext. Appellant also argues that favoritism
and nepotism is rampant among the managers, and that promotions are
filled with pre-selected candidates. However, it is well established
that pre-selection, favoritism or nepotism, although unfair, if based
on the qualifications of the selectee, does not establish a violation
of laws prohibiting discrimination in employment. Jenkins v. Department
of Interior, EEOC Request No. 05940284 (March 3, 1995).
Our review of the record reveals that it is devoid of any evidence
supporting appellant's allegation that age was a determinative factor in
the selection process. The mere fact that SE was significantly younger
than appellant, or even significantly younger than all of the candidates,
is, by itself, insufficient to establish discrimination based on age.
See Loeb, supra. and Fodal, supra.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. § 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant alleges that the AJ improperly handled his case during the
initial stages, and that he withdrew his request for a hearing fearing
conspiracy and bias. We note, however, that appellant presents no evidence
showing that the AJ abused her discretion in processing his claim.
Appellant also alleges that the EEO counseling and complaint processes
were riddled with errors and mis-communications. We advise appellant,
however, he should have directed his concerns to the Director of the EEO
Office. See EEO Management Directive 110 (4-8). Appellant additionally
alleges that the investigation was inadequate. However, after careful
examination, we find that the record contains sufficient pertinent
evidence upon which to base the instant determination.
2Appellant argues that he turned down the 204B assignment because to
accept it would have left his co-workers short-handed. Although this is
an admirable reason, it does not change the fact that appellant lacked
this experience which was a critical consideration in the selection
process.
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