01a45268
11-17-2004
David Rivera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Rivera v. United States Postal Service
01A45268
November 17, 2004
.
David Rivera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45268
Agency No. HI-0057-00
Hearing No. 160-A2-8300X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Postal Inspector at the agency's New York Metro Division
in New York, New York, filed a formal EEO complaint on May 30, 2000.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the bases of national origin (Puerto Rican), color
(olive complexion), and age (D.O.B. 6/26/50) when:
on January 15, 2000, he was not selected for the position of Inspector
Supervisor (Team Leader).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case
of national origin, color and age discrimination. The AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that complainant qualified for
the subject position and was one of the three top candidates referred
for consideration by the Selecting Official (SO), but that he was not
selected. 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 AJ noted that after the SO received twelve applications for the
position of Inspector Supervisor (Team Leader), he decided to form a
review panel to interview the candidates and make a recommendation
to him. The AJ further noted that the review panel consisted of
three Postal Inspectors; that the three-member panel interviewed and
reviewed the twelve candidates' 991 packages; and that the panel made
a recommendation of the top three candidates, including complainant,
in alphabetical order for the subject position to the SO.
The AJ noted that the SO stated that he relied on the recommendations of
the three-member panel in choosing the selectee for the subject position.
The SO stated that his decision was based upon discussion with the
review panel and its review of the 991 packages; evaluations during the
interview process; and the overall knowledge of the job demonstrated
during the interviews. The SO stated that the three-member panel
informed him that the selectee had "the best prepared, the superior 991
of the three candidates" and that she had "done the best preparation
for the interview with the panel, and conveyed to the panel the best
overall job knowledge for the vacancy as security team leader." The SO
stated that while the Assistant Inspector in Charge was with him during
the interview of the review panel, he never solicited an opinion from
her about whom he should select for the subject position. Furthermore,
the AJ noted that SO testified that complainant' s race and age were
not a consideration in his selection.
One of the three panelists (P1) testified that after he and the other two
panelists interviewed and reviewed the candidates' 991 packages, they
made a recommendation of three best finalists, including complainant,
"in alphabetical order" to the SO. The P1 further stated that the one
matter that he learned from training for the EAS selection process
was to be attentive to �specific behaviors� that address the KSAs
[knowledge, skills and abilities] that are in question; and that the
best way for an applicant to demonstrate their KSAs is to be extremely
specific regarding what actions he or she had taken to solve a problem.
The P1 further stated that complainant's "991 and the write-ups that
were given under the KSAs were not as specific as in the case of the
other candidates." The P1 further stated that he felt that complainant's
write-ups "oftentimes were conclusory in nature. They would state what
the problem was, and they would state that a good outcome resulted.�
However, the P1 noted that he did not find in many instances that
complainant was sufficiently specific in addressing exactly what
complainant did in order to solve a problem that was presented. The P1
stated that the other two candidates, particularly the third candidate,
were "very specific in terms of addressing each KSA by specifically
outlining the problem that was encountered and the step that was taken
in addressing that problem and what the results of that were."
Another panelist (P2) testified that the panel focused on two elements
during the selection process: the candidates' 991 applications and the
interviews. The P2 stated that when he was asked by the SO if he was
the Inspector in Charge, who would he select for the subject position,
he answered that he would choose the selectee for the subject position.
The P2 stated that he felt that the selectee demonstrated better
leadership qualities than the other two candidates because a review of
her 991 application showed that she "identified situations and tasks
very clearly, and that came through in the interview."
During the hearing, complainant asserted that on several occasions,
a team leader informed him that the SO and other managers thought
that complainant was �too old,� and that complainant was not part of
management's plans to be a team leader. The SO responded to this
assertion by stating that it was not his view that complainant was �too
old;� that if the team leader had made such a statement, it would have
been improper; and that the SO did not rely upon the team leader �to give
me any input into the selection of this vacancy . . .� In his decision,
the AJ determined that the �too old� comment, purportedly made by the
team leader, was not verified by anyone with direct knowledge of the
comment, and that there was no evidence supporting a determination that
the SO had ever even made such a statement. Moreover, the AJ noted
that the SO promoted numerous individuals in complainant's protected
age group, to supervisory positions.
The AJ also determined that complainant claimed that he was the victim
of harassment. Specifically, the AJ noted that complainant claimed
that he was the victim of disparaging remarks on various occasions over
a six-year period. However, the AJ found that complainant failed to
establish that he had been subjected to a hostile work environment, as
the actions alleged fail to rise to the level of actionable harassment
under the regulations. The AJ noted that complainant claimed that he
had been subjected to harassment when the Assistant Inspector in Charge
referred him and another Hispanic employee as "ChiChi" and "Taco" on a
couple of occasions over a six-year period, the AJ found that complainant
failed to establish that he had been subjected to harassment. The AJ
also found that the actions as alleged by complainant were isolated and
fail to rise to the level of actionable harassment under the regulations.
The agency's final action implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
national origin, color or age. In addition, we concur with the AJ's
finding that complainant failed to establish that he was harassed by
Assistant Inspector in Charge on the bases of national origin, color
and age. We further find that the incidents alleged by complainant were
isolated and insufficiently severe or pervasive to create a hostile work
environment. See Harris v. Forklift Systems Inc., 510 U.S. 17, 21 (1993).
We thus discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final action.
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
November 17, 2004
__________________
Date