0120101774
08-27-2010
Angel A. Santiago, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Angel A. Santiago,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120101774
Hearing No. 510-2009-00074X
Agency No. 4H-327-0131-08
DECISION
On March 22, 2010, Complainant filed an appeal from the Agency's February 17, 2010, final decision concerning his 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that he was subjected to discrimination on the bases of race and national origin in connection with two non-selections.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Finance Manager, EAS-23, in the Agency's Caribbean District in San Juan, Puerto Rico. Report of Investigation (ROI), at Ex. 1. Since early 2007, Complainant has applied for positions within the Central Florida District, most being voluntary downgrades to lower-level positions. Formal Complaint, at 1.
In early 2008, Complainant twice requested consideration for a non-competitive lower level reassignment to a Postmaster, EAS-21, position in the Central Florida District. ROI, at Ex. 4, 6, 18, 19. On February 7, 2008, Complainant requested consideration for a position at the Maitland, Florida Post Office, advertised under Vacancy Announcement Number SE-08073. ROI, at Ex. 4. On March 12, 2008, Complainant requested consideration for a position at the Lake Mary, Florida Post Office, advertised under Vacancy Announcement Number SE-08267. ROI, at Ex. 19. In both of his letters requesting consideration, Complainant cited personal reasons and hardship.1 ROI, at Ex. 6, 19.
The vacancy announcements included information about the position's functional purpose, knowledge, skill or ability (KSA) requirements, and application process. ROI, at Ex. 4, 18. The functional purpose of the position was the following: "Manages, through subordinate supervisors, the operation of a medium- to large-size post office, providing distribution, delivery, collection, and window service; may provide for the operation of stations or branches within the area served." Id. The KSA requirements identified were decision making/problem analysis; budget operations; planning and scheduling of work; safety and health; customer and community relations; labor relations; equal employment opportunity; employee development; and supervision. Id. EAS employees requesting a non-competitive lateral or lower level reassignment were instructed to submit a PS Form 991 (pages 1 and 2) and a written request for non-competitive consideration.2 Id.
According to Agency policy, management should consider non-competitive applications for voluntary lateral reassignment or a change to lower level at any time they are received, before the competitive announcement process begins, during the process, or after the competitive applications have been assessed. ROI, Ex. 29, at 3; Ex. 30, at 4. However, there is no requirement to select a non-competitive applicant. ROI, Ex. 30, at 4.
The Maitland and Lake Mary positions involved different three-member Review Committees (RC1 and RC2, respectively), but the same Selecting Official (SO). ROI, at Ex. 3, 17.
For the Maitland Position, RC1 interviewed 11 out of the 23 applicants, including Complainant. ROI, at Ex. 12. In an April 8, 2008, letter, RC1 recommended six applicants for SO to interview; Complainant was not among those recommended. ROI, at Ex. 7. In an April 9, 2008, letter, RC1 informed Complainant that he was not recommended for the position. ROI, at Ex. 8. On June 4, 2008, SO chose the selectee (Selectee 1) for the position after interviewing the recommended applicants. ROI, at Ex. 13. In a June 5, 2008, letter, SO informed Complainant that he was not selected for the position. ROI, at Ex. 9.
For the Lake Mary position, RC2 evaluated only the competitive applicants and did not consider the applicants that requested non-competitive consideration. ROI, Aff. E, at 4-6; Aff. F, at 4-6; Aff. G, at 4-6. In an April 8, 2008, letter, RC2 recommended five applicants for SO to interview and referred the names of the three applicants, including Complainant, who had requested non-competitive reassignment. ROI, at Ex. 20. According to RC2, it felt that SO should decide whether or not to interview the non-competitive applicants based on his review of their applications. ROI, Aff. F, at 5-6. On June 4, 2008, SO chose the selectee (Selectee 2) for the position. ROI, at Ex. 25. In a June 5, 2008, letter, SO informed Complainant that he was not selected for the position. ROI, at Ex. 21.
On July 7, 2008, Complainant contacted an EEO Counselor. EEO Counselor's Report, at 1. On August 2, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic3) and national origin (Puerto Rican) when:
1. on June 5, 2008, he was not selected for the position of Postmaster (EAS-21) at the Maitland, Florida Post Office, advertised under Vacancy Announcement Number SE-08073;
2. on June 5, 2008, he was not selected for the position of Postmaster (EAS-21) at the Lake Mary, Florida Post Office, advertised under Vacancy Announcement Number SE-08267; and
3. since early 2007, he was not selected for various voluntary downgrade positions in the Central Florida District.4
On August 29, 2008, the Agency issued a partial acceptance/partial dismissal of Complainant's complaint. The Agency accepted claims 1 and 2 for investigation, but dismissed claim 3 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency found that Complainant failed to establish a prima facie case of discrimination because he failed to prove the fourth element of his prima facie case: an individual not in his protected class was selected under circumstances which, if left unexplained, would support an inference of discrimination. Agency's February 17, 2010 Final Decision, at 10-11. In so finding, the Agency explained that Complainant did not demonstrate that the selected candidates were less qualified than he or that his qualifications were plainly or demonstrably superior to those of the selectees. Id. Next, the Agency assumed for the sake of argument that Complainant established a prima facie case and found that management articulated legitimate, nondiscriminatory reasons for their actions; namely, SO considered Complainant for non-competitive lower level reassignment to the positions but selected candidates with demonstrated in-depth current operational knowledge, skills, and abilities. Id. at 12-14. Finally, the Agency found that Complainant's unsupported conclusion that SO discriminated against him when he was not selected is insufficient to demonstrate pretext. Id. at 15. The Agency found that Complainant was unable to provide evidence of his superior qualifications because he identified the wrong individuals as the selectees and admitted that he did not know their shortcomings or downfalls. Id. at 16. The Agency noted that SO considered non-competitive applicants even though he was not required to do so and observed that SO has a history of selecting EAS-21 employees from diverse backgrounds. Id. at 15-16.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. In response, the Agency reiterates its previous arguments and requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim 3 - Untimely EEO Counselor Contact
In his September 8, 2008 response to the Agency's August 29, 2008 dismissal of claim 3, Complainant asserted that his non-selections at issue in claim 3 were part of a pattern of ongoing discrimination and implied that this was a continuing violation not subject to the time limits for raising claims in a timely manner. Complainant wrote, "It is my belief that this should be part of the record, since by not being considered or selected for these positions in the past, clearly demonstrates a pattern of selection practices utilized at the Central Florida that are contrary to Postal Rules and Regulations. In addition, Complainant wrote, "I am aware of the 45 day policy, but a person does not immediately seek EEO counseling for not being selected the first time."
Claims involving events such as promotion, termination, or a non-selection are clearly defined and are considered to be discrete acts. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14. With a discrete act, each incident of discrimination constitutes a separate actionable "unlawful employment practice." Id. at 114. In these instances, a continuing violation theory cannot be applied to link timely raised claims with those that were untimely raised and any time limitations must be applied to each discrete act. Id. at 115. Applying these principles, we conclude that the non-selections in claim 3 are discrete acts, each of which must meet the regulatory time frame for raising a claim of discrimination.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory.
In this case, we find that the Agency properly dismissed claim 3 for untimely EEO Counselor contact. The record shows that the non-selections alleged in claim 3 occurred on March 1, October 1, October 23, November 8, and March 18, 2008. Formal Complaint, at 10, 18-21. Complainant therefore was required to initiate contact with an EEO Counselor by May 2, 2008, at the latest, to fall within the 45-day limitation period, but Complainant did not initiate contact until July 7, 2008. EEO Counselor's Report, at 1. As such, we affirm the Agency's dismissal of claim 3 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Claims 1 and 2 - Disparate Treatment
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
As an initial matter, we find that the Agency incorrectly analyzed the fourth element of Complainant's prima facie case when it reasoned that there was no inference of discrimination because Complainant failed to show that he was more qualified than the Selectees. FAD, at 10-11. As long as Complainant applied and was qualified for the positions at issue, and the Selectees are outside Complainant's protected class, Complainant has established a prima facie case of discriminatory non-selection. See McDonnell Douglas 441 U.S. at 802. Any evidence regarding the comparative qualifications of Complainant and the Selectees is only considered in the subsequent steps of the McDonnell Douglas analysis. See Moore v. Tenn. Valley Auth., EEOC Appeal No. 01985969 (Feb. 2, 2000).
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race and national origin, we find that the Agency articulated legitimate, nondiscriminatory reasons for his non-selections. SO attested that he considered Complainant for both positions but thought it was "critical" for the successful applicants to be currently engaged in operations. ROI, Aff. H, at 4, 8. Regarding claim 1, SO attested that he chose Selectee 1 because he had over 20 years of Agency service, had been a Postmaster since 2002, and had been an Acting Manager, Post Office Operations for 12 of the 24 months prior to applying. Id. at 5. In addition, SO attested that Selectee 1 was very familiar with all of the performance indicators and was very much engaged with his operation. Id. Regarding claim 2, SO attested that Selectee 2 was the best candidate based on his knowledge, skills, abilities, and experience, particularly involving delivery. Id. at 8-9. In addition, SO attested that Selectee 2 had extensive knowledge of the Delivery DOIS system and was overseeing over 140 city routes at the time he applied. Id. Further, SO attested that Selectee 2's wealth of knowledge in the delivery area was important because upcoming changes would require the 327 group to downsize over 100 city carriers. Id.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In an attempt to show pretext, Complainant argues that his qualifications are superior to those of the selectees because of his 35 years of service, his 12 years of prior Postmaster experience, his diversified experience within the Agency, his training, awards, and recognition, and his 2800 hour sick leave balance. Complainant's Aff., at 5, 10. In addition, Complainant argues that, given his experience and that he requested a lower-level reassignment, his qualifications were superior to those of the selectees because the selectees had been promoted into the position. Id. at 6, 11. Further, Complainant argues that his race and national origin were factors in his non-selections because he did not know of any Hispanics from Puerto Rico who were promoted to positions that he had applied for since January 2007 in the Central Florida District. Id. at 8, 13.
Upon review of the record, we find that Complainant has not demonstrated by a preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In non-selection cases, a complainant may establish pretext by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We find that Complainant has failed to make this showing. Initially, we note that Complainant incorrectly identified the Selectees. Complainant's Aff., at 6, 11. In fact, Complainant appears to be unsure about the Selectees' qualifications, but nonetheless asserts that his qualifications are superior. Id. at 7, 12. Complainant attested, "I do not know of any shortcomings or downfalls that the selected candidate[s] may have. I do know that based on my years in the Agency and the various management positions that I have held in the past [I] would ... [be] a better potential candidate for the position[s]." Id. at 7, 12. We find significant SO's emphasis of how critical it was for applicants to have current operations experience. ROI, Aff. H, at 4, 8. A review of Complainant's and the Selectees' applications indicates that Complainant had 12 years of Postmaster experience with the most recent in 2003, whereas Selectee 1 had 6 years of Postmaster experience with the most recent at the time of the selection and Selectee 2 had 14 years of Postmaster experience with the most recent in 2007. Complainant's Aff., at 19; ROI, at Ex. 10, 22. Although Complainant implies that his qualifications are superior because he held an EAS-23 position and the Selectees held EAS-20 and EAS-22 positions, respectively, we are not convinced that this proves Complainant's qualifications are superior as they relate to the positions at issue. Id. Complainant held a Finance Manager position, whereas the Selectees held operational positions at the time of their selections - Postmaster and Manager Customer Services, respectively. Id.
Regarding Complainant's assertion that the selections at issue were discriminatory because the selectees in other Central Florida District positions that he applied for were outside his protected groups, we find that this in itself does not show discriminatory animus. We note also in this regard that SO attested to selecting an individual of Hispanic national origin as one of the three EAS-21 selections he made in the past year. ROI, Aff. H, at 10. Ultimately, the Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, we find that the Agency's finding of no discrimination is supported by the preponderant evidence of record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 27, 2010
Date
1 Complainant wrote that he wanted to be near his family in Orlando, Florida; his wife was transferred with her company in early January 2007 and his daughter started college in the area in April 2007. ROI, at Ex. 6, 19.
2 Although he was not obligated to do so, Complainant's applications also addressed the KSA requirements of the position. ROI, Ex. 4, 6, 18, 19.
3 We note that the Commission considers the term "Hispanic" to denote national origin rather than race.
4 Complainant did not cite specific dates for the non-selections in his formal complaint, but a review of the attachments he submitted with his formal complaint reveals that the non-selections occurred in March 1, 2007, October 1, 2007, October 23, 2007, November 8, 2007, and March 18, 2008. Formal Complaint, at 10, 18-21.
??
??
??
??
2
0120101774
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101774