0120073162
10-04-2007
Albertina Paz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Albertina Paz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073162
Hearing No. 550-2007-00109X
Agency No. 6F-000-0010-06
DECISION
On July 3, 2007, complainant filed an appeal from the agency's May 31,
2007 final order concerning her equal employment opportunity (EEO)
complaint alleging 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final order.
On August 3, 2006, complainant filed a formal EEO complaint, wherein
she claimed that she was discriminated against on the bases of
race (Hispanic), national origin (Hispanic), sex (female), and age
(D.O.B. 2/26/55) when on June 8, 2006, she was not selected for the
corporate succession plan for the positions of Manager of Integrated
Business Systems Solutions Center and Manager of Mainframe Computer
Operations.
The duties and responsibilities for the Manager, Mainframe Computer
Operations position include:
1. Manages the planning, integration, implementation, operation and
evaluation of the host mainframe computer systems and supporting
hardware.
2. Manages the planning, implementation, operation, support and evaluation
of host mainframe computer system software.
3. Manages the implementation, operation and evaluation of host computer
data and system security.
4. Manages the development, testing, operation and evaluation of
contingency plans for short and long-term termination of host computer
system operations.
5. Manages the compliance with the system and application change in
problem resolution process.
6. Manages a large number of professional, technical and clerical staff
through a small number of managers and supervisors.
7. Provides technical advice and guidance to management on all host
mainframe computer operations.
The duties and responsibilities for the Integrated Business Systems
Solution Center Manager position include:
1. Manages a large-sized staff of employees and contractors through a
staff of managers and supervisors.
2. Manages the supply of agency employees and contractors for business
systems solutions development and maintenance projects.
3. Manages the training, career development, mentoring, and assignments
to development employee skill levels.
4. Manages the quality assurance program that ensures the correct use
of tools and techniques within the development and maintenance standards.
5. Manages the sharing of process improvements and employees between
other IBSSC units to aid in process improvement and workload balancing.
6. Manages the research, evaluation, integration of training to improve
staff technical and interpersonal skills.
7. Manages the acquisition and implementation of software to meet current
and future technology needs.
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. Over the complainant's objections, the AJ assigned
to the case granted the agency's Motion for a Decision Without a Hearing
and issued a decision without a hearing on May 21, 2007. The AJ noted
that the IT Review committee of eight members rejected complainant's
application for both positions. According to the Committee, complainant
lacked the technical education and experience to qualify for an upper
level position. The AJ observed that the IT Review Committee utilized
four tests in reviewing the applications. The first test required that
the applicant have either a degree and five years of IT experience or
10 years of IT experience. The second test focused on the applicant's
manager's assessment of the applicant and whether the manager supported
the application. The third test concerned whether the applicant
possessed the specific skills related to the position. The selection
process provided that if an applicant passed all three of these tests, the
applicant would be placed on the succession list. If the applicant failed
any one of the three tests, then the applicant would be considered under
the fourth test. The fourth test considered the applicant's management
experience, specifically evaluations while acting in an executive
position, leadership in a major IT success, and management's personal
knowledge of the applicant's individual competencies. An applicant could
be added to the succession planning list if he passed the fourth test.
Complainant passed the first test for both positions. Complainant
neither passed nor failed the second test for the Integrated Business
Systems Solutions Center position as her manager stated that he could
not evaluate complainant's qualifications for the position because
he had not observed her managing large-scale software projects.
Complainant's manager supported her application for the Manager of
Mainframe Computer Operations position. Complainant failed the third
test for both positions. According to the Review Committee, some of
complainant's listed experience was either not relevant or not current.
The Committee found that her experience in IBSSC prior to 2002 was not
relevant due to changes in the technical and managerial skills required
to operate IBSSC. With regard to the Mainframe Computer position, the
Committee determined that complainant lacked knowledge of the Mainframe
operations, including the physical and logical structures associated
with it. The Committee further stated that complainant lacked detailed
knowledge of the Open VMS operating system, the principles of the Virtual
memory operating system, the UNIX operating system, or the various Windows
operating systems. With respect to the fourth test, the Review Committee
stated that complainant had never acted in a PCES position and found
that her application did not demonstrate that she had ever led a major
IT success. Complainant's manager stated that complainant's strengths
were in project administration and the budget mechanics of operating a
data center. Complainant's manager further stated that complainant's
weaknesses were a lack of technical background and systems administration
in systems programming. The AJ observed that the Review Committee decided
not to recommend complainant for the succession plan for either position
because she failed tests three and four. The AJ noted that the Review
Committee determined that complainant had limited technical education,
limited on-the-job IT experience, limited and not relevant IT experience
as it pertained to the two positions, and that she had not demonstrated
the level of performance and/or management characteristics expected of
the positions. Ten of the 23 applicants for the position in the IBSSC
pool were selected for placement on the succession plan. The accepted
applicants included three women (ages 47, 51, and 49) and seven men
(ages 53, 46, 42, 51, 46, 45 and 56). Two of the five applicants for
the Manager of the Mainframe Computer Operations pool qualified for
placement on the succession plan. One woman (age 58, Asian/Chinese)
and one man (age 57, Caucasian) were selected for the succession plan.
The AJ found that the agency articulated a non-discriminatory reason for
not selecting complainant for the relevant corporate succession pools.
The AJ stated that the IT Review Committee considered complainant's
experience outdated with respect to current operating systems and
software. The AJ concluded that complainant's qualifications for the two
corporate succession pools were not so obviously superior to those of the
successful applicants as to give rise to an inference of discrimination.
The AJ found that complainant did not present any evidence to raise an
inference that the agency's stated reason for not selecting her was a
pretext for discrimination or that any of the alleged bases factored
into the decision.
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 Corporate Succession Plan
Review Committee did not apply its selection criteria in a uniform
manner and that it applied the fourth test on a desire to admit basis.
Complainant argues that several White males with lower performance ratings
and with lower corporate succession plan composite assessment scores were
admitted into the corporate succession plan. Complainant states that
a White man failed tests one and two, but was still admitted into the
corporate succession plan under test four. Complainant charges that
the Review Committee admitted two White male candidates into the IBSSC
position pool who had never worked in the IBSSC. Complainant notes
she has a college degree and over 20 years of agency IT experience,
whereas a White male who was accepted does not have a college degree
and has only 1 1/2 years of agency IT experience. Complainant states
that this comparison's manager stated that the comparison needed more
time in service and was not a viable candidate for the IBSSC pool,
but that the Review Committee nonetheless recommended his nomination.
Complainant argues that another White male comparison was recommended
by the Review Committee as someone who has demonstrated a level of
performance and/or management characteristics expected of position
applied despite the fact that he has not managed a large staff, does
not manage anyone in the Host Computing Services, and does not manage
anyone elsewhere. Complainant argues that the AJ failed to recognize
that the Review Committee utilized a subjective application of test four
to admit individuals who did not pass the first three tests. Complainant
contends that the Committee members employed their own personal knowledge
of the individual rather than the criteria set forth in test four.
Complainant maintains that the AJ erred in not granting her Motion to
Compel because she can not prove her assertions without depositions.
In response, the agency asserts that complainant suffered no loss of
a term, condition, or benefit of employment. The agency states that
the corporate succession plan is a mechanism to identify, develop and
prepare qualified employees to be future executives within the agency
as positions become available. The agency asserts that the Review
Committee determined that complainant was not accepted into the Plan
due to her lack of technical IT education and experience. The agency
maintains that the AJ properly denied complainant's Motion to Compel
because complainant failed to establish good cause for extension of the
discovery process beyond March 13, 2007, and due to the untimeliness
of her Motion. The agency notes that complainant was provided an
opportunity on February 1, 2007, to take depositions of out-of-state
witnesses by telephone before discovery closed, but did not respond to
the offer. The agency states the complainant waited six weeks after
the offer was made to file a Motion to Compel On-site Depositions.
The agency maintains that complainant failed to establish good cause
why witnesses should have had to travel long distances to have their
deposition taken on-site rather than be deposed by telephone. The agency
states that a female was one of the two successful candidates for the
Manager, Mainframe Computer Operations pool. The agency asserts that
complainant submitted no evidence that any other Hispanic man or female
nominated themselves to the Corporate Succession Plan and was rejected.
The agency reasons that complainant's rejection was not due to her race
or national origin since applicants of different races and national
origin were also rejected. The agency further argues that complainant
does not challenge on appeal the Review Committee's evaluation of her
skills on test three which eliminated her from further consideration.
The agency maintains that on appeal, complainant raises no substantive
evidence to support an inference that any of the alleged bases played
a role in the Committee's evaluation of her application.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
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's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. 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. at 255. An 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Initially, we shall address complainant's claim that the AJ improperly
denied her discovery motion. We agree that the AJ acted reasonably by
denying complainant's Motion to Compel. Complainant failed to establish
why telephone depositions were not a sufficient means of discovery for
those agency officials that were a significant distance away.
We shall assume arguendo, that complainant has established a prima facie
case under the alleged bases. The agency stated that complainant was not
selected for the corporate succession plan for the two positions at issue
because she lacked the technical IT education and experience to qualify
for an upper level IT position. The agency stated that complainant failed
the third test as the Review Committee concluded that complainant did not
have some of these required skills. We find that the agency articulated
a legitimate, nondiscriminatory reason for not selecting complainant.
Complainant argues that the agency selection process was discriminatory
as candidates outside of her protected groups were selected despite the
fact that she had better qualifications. In particular, complainant
focuses on the selection of certain White males. However, complainant's
arguments have not established that the Review Committee made choices
that reflect discriminatory intent. The record reveals that several
women and many individuals close to complainant's age were chosen
by the Committee. The agency noted that several of the individuals
cited by complainant had served as program managers, were experienced
with different technologies and applications, and overall had broad
technical knowledge in various operating systems. Complainant's work
experience does not reflect clearly superior experience in operating
systems or software development to that of her identified comparisons.
In fact, complainant's technical experience was regarded in some areas
as outdated and complainant has not disproved that assertion. We find
that complainant has not shown that the agency's explanation for not
selecting her was pretext intended to mask discriminatory motivation.
Upon review of the record in its entirety, including the contentions set
forth by complainant on appeal and the agency's response, we find that
complainant has not established by a preponderance of the evidence that
her nonselection for inclusion in the corporate succession plan for the
two relevant positions was based on discriminatory intent.
The agency's decision finding no discrimination is AFFIRMED.
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
October 4, 2007
__________________
Date
2
01200731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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