Louis C. Siriani, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120064706 (E.E.O.C. Feb. 2, 2007)

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

4

0120064706