01A43031
07-09-2004
David J. Saturna, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David J. Saturna v. United States Postal Service
01A43031
July 9, 2004
.
David J. Saturna,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43031
Agency No. 4C-080-0060-03
DECISION
Complainant, an Automotive Technician, PS-7, filed an EEO complaint dated
May 30, 2003, in which he claimed that the agency discriminated against
him on the basis of his disability (visual impairment) when on April
14, 2003, he was not selected for the position of Supervisor, Vehicle
Maintenance, EAS-17. Complainant also claimed that the agency failed
to comply with a Step 2 grievance settlement and a verbal agreement when
it did not select him for the Supervisor, Vehicle Maintenance position.
The EEO complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, complainant requested that
the agency issue a final action. The agency issued a final action
dated February 17, 2004, finding that no discrimination occurred.
The agency determined that complainant failed to set forth a prima
facie case of disability discrimination. According to the agency,
although it is aware of complainant's vision impairment, there is
no indication that complainant is considered to have a disability.
The agency noted that complainant submitted a letter from a Rehabilitation
Counselor stating that complainant is visually handicapped as well as
other letters referencing his impaired vision. However, the agency
determined that complainant failed to provide any documentation which
states that his impaired vision substantially limits one or more of
his major life activities. Further, the agency stated that complainant
failed to explain how the comparison employees he cited were treated more
favorably under similar circumstances. The agency next determined that it
articulated legitimate, nondiscriminatory reasons for its non-selection
of complainant. The agency stated that complainant and the three other
applicants considered best qualified for the position were interviewed
by the Manager, Vehicle Maintenance. Although the Manager, Vehicle
Maintenance, is now deceased, the Postmaster, concurring official,
stated that the Manager had told him that the selectee was by far the
best candidate. The Postmaster stated that the selection was based on
the interviews.
The agency determined that complainant failed to establish that the
agency's articulated reasons were not credible or a pretext to mask
discrimination. The agency stated that there is no evidence that
complainant's qualifications were demonstrably superior to those
of the selectee. With regard to the grievance settlement cited by
complainant, the agency determined that the Step 2 settlement did
not provide complainant with a guaranteed entitlement to a position.
The agency stated that complainant was required to compete competitively
for the position and by complainant's admission, he was unable to answer
questions during the interview.
On appeal, complainant contends that the selecting official's biased
opinion toward his disability prevented him from receiving promotions.
In support of his appeal, complainant submits a copy of the Step 2
grievance settlement dated November 15, 2002. The settlement states that
complainant will be afforded ASP training at the next available class
and management will assist complainant with his upward mobility goals.
Complainant also submits a letter from his representative which states
that management verbally agreed in August 2002 to give complainant
training in the administrative office as soon as possible.
Initially, we shall address complainant's contention that his
non-selection for the Supervisor, Vehicle Maintenance position constituted
a breach of the Step 2 grievance settlement. We find that this argument
is a collateral attack on the grievance process. The EEO process is not
the forum for addressing an alleged breach of a grievance settlement.
As for an alleged breach of an oral agreement to provide complainant
training in the administrative office, there is no indication that such
an agreement was reduced to writing and therefore it is not enforceable.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a complaint claiming
disability discrimination based on disparate treatment is the same
three-step process as that set forth in the Title VII case McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 802-803 (1973). See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Circuit 1981).
(McDonnell-Douglas analysis applicable to disability cases claiming
disparate treatment).
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). 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 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of disability discrimination.
Next, we shall consider whether the agency articulated a legitimate,
nondiscriminatory reason for its action. In this case, the Commission
finds that the agency has articulated a legitimate, nondiscriminatory
reason for its action. Consequently, we will dispense with an examination
of whether complainant established a prima facie case with respect to
the above cited issue and review below, the reason articulated by the
agency for its action as well as complainant's effort to prove pretext.
The Postmaster stated that the selecting official told him that the
selectee was by far the best candidate for the position. According to
the Postmaster, the selection was based on the interviews. We note that
complainant acknowledged that he was unable to answer questions during
the interview. We find that the agency has articulated a legitimate,
nondiscriminatory reason for its selection decision.
We find that complainant failed to refute the agency's position that he
was not chosen because the selectee had a better interview. We note that
complainant argued that his problems during the interview were the result
of not receiving the same opportunities to act in a managerial position
as that afforded the selectee. Nevertheless, we find that complainant
has not shown that his qualifications for the position at issue were
so superior to those of the selectee as to warrant a finding that the
agency's stated reason is pretextual. See Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). We find that complainant has not shown,
by a preponderance of the evidence, that the agency's stated reason for
his non-selection was pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
disability 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
July 9, 2004
__________________
Date