0120064706
02-02-2007
Louis C. Siriani, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louis C. Siriani,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200647061
Agency No. 4B020001806
DECISION
On August 11, 2006, complainant filed an appeal from the agency's July
17, 2006, final decision concerning his EEO complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
The record reveals that complainant filed a formal complaint alleging that
the agency discriminated against him on the basis of physical disability
(chronic liver disease) and mental disability (bi-polar disorder)2 when
on January 23, 2006, he learned he was not selected for the position of
Letter Carrier at the agency's facility in Boston, MA.
At the conclusion of the investigation, complainant received a copy of
the investigative report and notice of his right to request a hearing
before an EEOC Administrative Judge. Complainant requested an immediate
final agency decision. The agency issued a decision on July 17, 2006
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 91981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 039600056 (May 31, 1990).
Here, the agency found that complainant failed to establish a prima facie
case of disability discrimination. Specifically, the agency determined
that complainant failed to demonstrate that he was an individual
with a disability as defined by the Rehabilitation Act. However, the
agency found further that it articulated legitimate, nondiscriminatory
reasons for not selecting complainant for the letter carrier position.
The record indicates that the recommending official for the position
testified that he did not recommend complainant to fill the position due
to his oral presentation, demeanor and discussion of the position during
the interview. The agency also indicated that additional factors were
considered including complainant's ability to adapt to the work setting,
and the content of the job as well his communication skills.
In non-selection cases, pretext may be found where the complainant's
qualifications were plainly superior to the qualifications of the
selectee. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). The Commission also notes that an employer has
the discretion to choose among equally qualified candidates provided
that the employment decision is not based upon unlawful criteria.
Having considered the evidence of record, the Commission finds that
complainant has not established pretext. Specifically, we note that
complainant has not demonstrated that his qualifications for the letter
carrier position were "observably superior" to those of the selectee's
or presented other evidence to establish pretext. In that regard, we
find that complainant has failed to demonstrate that the agency's stated
reasons for its actions were pretext to mask unlawful discrimination as
alleged.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
February 2, 2007
__________________
Date
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 For purposes of analysis, the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)
(i).
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0120064706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064706