01993886
01-25-2002
Olga Y. Quiroz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Olga Y. Quiroz v. United States Postal Service
01993886
January 25, 2002
.
Olga Y. Quiroz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01993886
Agency No. 1G782102896
Hearing No. 360-98-8505X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful 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.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of her sex (female), national origin (Hispanic),
and disability (visually impaired) when her supervisor failed to act
upon her request to retake a test which would allow her name to be
placed on the Preferred Eligibility Register (PER), and as a result,
she was unable to compete for a Level 6 position.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that, at the relevant time, complainant was employed
as a Maintenance Support Clerk, GS-05 at the agency's El Paso, Texas
facility. Complainant wished to apply for a promotion, and in order to
meet its required qualifications she took two tests, Test 710, Clerical
and Test CBT 714. Complainant passed Test 714, but not Test 710.
She subsequently requested from her supervisor (S1), in writing and
orally, permission to take Test 710 again so that she could apply for a
GS-06 position which was to close for bids on May 5, 1996. The record
reflects that complainant sought explanations for the delay in processing
her request on at least four occasions. However, complainant received
no response to her request in time to be able to retake the test and bid
for the position. Believing herself to be a victim of discrimination,
complainant initiated contact with an EEO Counselor on May 8, 1996.
On June 25, 1996, she filed a formal complaint of discrimination.
On August 6, 1996, the agency issued a final decision, dismissing
complainant's complaint for failure to initiate contact with an EEO
Counselor in a timely manner. Complainant subsequently appealed that
decision, arguing that her initial contact was timely because she did
not become aware of any impropriety on the part of S1, until May 6, 1996.
On appeal, the agency's dismissal was reversed and remanded for further
processing. See Quiroz v. United States Postal Service, EEOC Appeal
No. 01966422 (August 6, 1997); EEOC Request No. 06971850 (February 19,
1998). At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination, however, she did establish a prima facie
case of both sex and national origin discrimination. The AJ further
concluded that the agency articulated a legitimate, nondiscriminatory
reason for its actions. Specifically, the AJ found that complainant was
denied the job bid because complainant failed the test requirements for
the position.<2> The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination. The agency's final decision implemented
the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Complainant makes the following additional arguments:
Complainant's disability has been well-established with the agency;
The Collective Bargaining Agreement (CBA) includes guarantees of her
right to retake the examination;<3>
The agency fails to address the fact that, according to the CBA,
examinations are not to be used as the qualifying factor in promotions;<4>
Management's own memorandum describes specific and applicable update
procedures for Maintenance Support Clerks.
The agency fails to address the other upgrading procedures available
to complainant, and addresses only the ability of complainant to retake
the test.
The agency violated complainant's rights under the ADA in that she
was never advised of special accommodations available to her in the
examination and testing procedures.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
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 does not
sit as a fact finder. Id. 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. A disputed 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. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
We first note that the agency was correct to address only complainant's
ability to take Test 710, and not other upgrading procedures that
might exist, given that other upgrading procedures were not raised
as issues in the complaint. Second, insofar as complainant's appeal
brief states that the agency �violated complainant's rights under
the ADA and Handbook E1-307 ... in that she was never advised of
special accommodations available to her in the examination the testing
procedures,� we first note that complainant never asserted below that
she required any accommodation for the test in question. Second, in
her affidavit, complainant was specifically asked whether she required
any accommodation and, if so, whether such accommodation was granted.
Complainant responded �No.� Report of Investigation, Affidavit A, p. 7.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (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. 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. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established her prima facie case
of discrimination based on the alleged purviews, the Commission turns to
the agency to articulate a legitimate, nondiscriminatory reason for its
delay in processing complainant's request. Upon review of the record, the
agency's reason for not permitting complainant to retake the examination
is that there were no provisions in place at the time to update or retake
the test, and a decision about how to handle complainant's request was
being made at the agency's Employment and Placement Center (EPC).<5>
The burden returns to complainant to show that the agency's reasons
were pretext for discrimination. The matter of whether the delay in
permitting complainant to retake the examination violated the CBA or
the agency's own rules and regulations is immaterial to the issue of
discrimination. The relevant question is whether or not complainant
has met her burden of demonstrating that the agency's reason is, more
likely than not, pretext for discriminate against her because of her
sex, national origin or disability. The Commission is not persuaded
by the evidence of record that the agency delayed in giving her a
response because of a discriminatory motive. In so finding, we note
that complainant has presented no evidence that a similarly-situated
individual, not in her protected classes, was given the opportunity
to retake this test after having failed it. The record reveals that
the selectee is not similarly-situated because he did pass Test 710.
The second individual named by complainant as a comparator received,
on September 22, 1994, a promotion to a Maintenance Control Technician,
Level 6 position without being required to pass Test 710. However, there
were different procedures for establishing the PER for that position,
which were in accordance with the �banding concept.� This individual,
therefore, is not similarly-situated to complainant, since the position
for which she applied had different eligibility requirements than the
position at issue in the instant case. Complainant also names, in her
affidavit, other individuals in the maintenance department whom she says
were permitted to upgrade their test scores. However, complainant has not
established that these individuals also took and failed the same test,
Test 710, which the agency has asserted is unique in that it measures
one's aptitude and other characteristics which are not readily altered.
Based on a de novo review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision.
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
January 25, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 We note that the issue at hand is not whether the agency wrongfully
denied complainant the position she sought. The issue is whether the
agency wrongfully denied complainant the opportunity to retake the test
that she needed to pass in order to be eligible to be placed on the PER
for the promotion.
3 Complainant cites Article 33.3 of the CBA which states, �When an
examination is given, there shall be no unreasonable limitation on the
number of examinations that may be taken by an applicant.�
4 Complainant cites Article 33.2 of the CBA which states, �Written
examinations shall not be controlling in determining qualifications.�
5 There is evidence of record that the following statement was made to
S1 by an individual at the EPC: �As discussed, there are no provisions
in place at this time to retake the examination 710 incraft. The 710
measures one's aptitude for performing office clerical work. Aptitudes
and other stable characteristics of individuals are, by definition,
not readily altered or upgraded. With aptitude requirements, there is
very little, if anything, a candidate could offer by way of additional
learning that would serve to justify an update.... Discussions regarding
this matter have not been finalized.�