0120071996
09-10-2007
David Shu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Shu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071996
Hearing No. 340200500046X
Agency No. 6X000000404
DECISION
On March 11, 2007, complainant timely filed an appeal from the agency's
February 15, 2007 final order (FAD) concerning complainant's equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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.
At the time of events giving rise to this complaint, complainant was
former agency employee and an applicant for positions at various agency
facilities. On August 29, 2004, complainant filed an EEO complaint
alleging that the agency discriminated against him on the bases of his
national origin (Chinese), his sex, and age (D.O.B 12/24/1951) when;
1. on June 4, 2002, he was not selected for Management Intern Program
(MIP) ;
2. on September 5, 2002, he was not recommended as a finalist for
the position of Professional Specialist Intern, Network Operations
Management;
3. on September 9, 2002, he was notified that he was not selected as a
Professional Specialist Intern;
4. on September 20, 2002, he was not selected for Vacancy Announcement
No. HQ-4532, Architect Engineer, EAS-23;
5. on September 25, 2002, he was not selected for Vacancy Announcement
No. 4196, Architect Engineer, EAS-2S;
6. on October 7, 2002, he was not selected for Vacancy Announcement
No. 07100, Architect Engineer, EAS-23;
7. on October 15, 2002, he was not selected for Vacancy Announcement
No. HQ-4286, Architect Engineer, EAS-2S;
8. on May 7, 2003, he was not selected as a Management Intern;
9. on June 10, 2003, he was not selected for Vacancy Announcement
No. 07944, Professional Specialist Trainee;
10. on June 26, 2003, he was not selected for Vacancy Announcement
No. 07676, Architect Engineer, EAS-25;
11. on July 1, 2003, he was not selected for Vacancy Announcement
No. HQ-07864, Strategic Planning Specialist, EAS-23; and
12. on September 12, 2003, he was not selected for Architect/Engineer
position, Vacancy No. 08196.
Complainant further alleged that he was discriminated against on the
bases of his national origin (Chinese), his sex, age (DOB: 12/24/51),
and in retaliation for prior EEO activity when:
13. on October 30, 2003, he was not recommended as a finalist for the
position of Professional Specialist Intern;
14. on November 17, 2003, he was not selected for Vacancy Announcement
No. 08345, Professional Specialist Trainee;
15. on April 6, 2004, Vacancy Announcement No. 01895, Architect Engineer,
EAS-21, was cancelled;
16. On May 3, 2004, he became aware that he was not offered a position
as a Management Intern for the Spring 2004 MIP;
17. on May 14, 2004, he was notified that his scheduled interview for
Vacancy Announcement No. [08196] (Re-issued), Architect/Engineer position
was cancelled;1
18. on May 19, 2004, his inquiry letter was returned along with a copy
of position-cancelled letter dated August 7, 2003; and
19. on November 22, 2004, he was not selected for the Fall 2004 MIP.
In a letter dated January 3, 2005, the agency partially accepted and
partially dismissed complainant's complaint. The agency accepted claims
(16), (17), and (19) for investigation. However, the agency dismissed
claims (1) through (15) pursuant to 29 C.F.R. � 1614.107(a)(2) since
complainant failed to contact an EEO counselor within 45 days of each
incident. Further the agency found that complainant failed to show
that he did not have a reasonable suspicion of discrimination until he
was informed on May 3, 2004 that he was not offered a management intern
position. The agency also found that complainant failed to proffer any
evidence to allow for the tolling the requisite time limits. With regard
to claims (15) and (18) the agency found that complainant failed to
state claim pursuant to 29 C.F.R. � 1614.107(a)(1), since he failed to
state how he was aggrieved with regard to a term, condition or privilege
of employment. At the conclusion of the investigation, complainant was
provided with a copy of the Report of Investigation (ROI) and notice of
his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The case was assigned to an
AJ, however, by letter dated December 9, 2006, complainant requested
that the agency issue a final agency decision. As a result, the AJ
dismissed complainant's hearing request in an order dated January 3,
2007, and remanded the case to the agency for a decision.
In its FAD, the agency found that complainant failed to establish a prima
facie case of national origin, sex, age, and retaliation discrimination.
Further, the agency found that complainant failed to rebut the agency's
legitimate, non-discriminatory reasons for its actions. As such,
the agency concluded that complainant failed to establish that he was
discriminated against as he alleged. Complainant appealed the FAD to
the Commission.
On appeal, complainant contends that the ROI was incomplete; the
agency improperly dismissed claims on procedural grounds; that he
established a prima facie case of retaliation; and established that
the agency's proffered reason for (16), (17), and (19), were a pretext
for discrimination. The agency requests that we affirm its FAD.
Preliminarily, we find that the agency appropriately dismissed
complainant's claims (1) -(15) pursuant to 29 C.F.R. �1614.107(a)(2).
Complainant contends that he did not suspect that the prior employment
actions were due to discrimination until he received notice from the
Manager of the MIP (MMIP) via e-mail on May 3, 2004. We note, however,
that the e-mail provided, in relevant part:
I am in no position to advise or counsel you regarding your career
decisions. In addition, if you recall at the orientation session
conducted prior to the interviews at the Bolger Center on Tuesday,
April 13, 2004, I explained to all of the candidates that any job offer
for any individual candidate would come from the Area officials who
interviewed the candidate. In addition, these job offers, if made,
would be completed by April 30.
ROI at Ex. A of Formal Complaint.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five
(45) day limitation period is triggered. See Howard v. Department of
the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the
time limitation period is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent. We find that there is nothing
specific in the May 3, 3004 e-mail that would have caused complainant
to believe that the past incidents were a result of discrimination, nor
has complainant specified what exactly in the e-mail or otherwise caused
him to believe that the past incidents were discriminatory. Moreover,
complainant has not provided any other reason to toll the time period.
As such, complainant should have contacted an EEO counselor within
forty-five (45) days of each discrete acts set forth in claims (1)
through (15). Therefore the agency appropriately dismissed the claims
for untimely EEO counselor contact.2
With regard to claim (18), 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). We find that complainant failed
to establish how he was aggrieved with regard to a term, condition or
privilege of employment when the agency returned his letter inquiring
about the cancellation of the position in claim (17) along with a copy
of position-cancellation letter.3
Finally, with regard to complainant's contentions that the ROI is
incomplete, we find that the ROI is sufficiently complete to render a
decision on the merits of claims (16), (17) and (19). Although the record
does not contain an affidavit from each interviewer for the spring 2004
MIP, the record does contain sufficient evidence since an interviewer
or selecting official from each of the areas where complainant applied
submitted an affidavit. With regard to claim (19), the record does
not contain any information about the selectee for the MIP, however,
we find there is sufficient evidence to render a decision. As such,
we decline to remand the case to the agency for further investigation.
Moreover, we note that complainant had initially requested a hearing
before an AJ, who had authority to further investigate and develop the
record, but complainant withdrew his hearing request and ultimately
requested a FAD.4
We note that on appeal an agency's final order issued without a hearing is
reviewed de novo. 29 C.F.R. � 1614.405(a). With regard to claim (16),
the record reflects that complainant applied for the Spring 2004 MIP.
The selection process involved multiple stages, with the interview
being the final stage. Complainant was interviewed by four different
Area Officials from the Capitol Metro Operations, the New York Metro
Operations, the Pacific Area, and the Northeast Area, who made the final
hiring decision regarding Management Interns for their respective areas.
On May 3, 2004, complainant received an e-mail from the MMIP stating
that job offers were to have been completed by April 30, 2004, or three
calendar days prior. From that e-mail, complainant deduced that he had
not been selected for a position with the Spring 2004 MIP.
With regard to claim (17), the record reflects that complainant applied
for Vacancy Announcement No. 08196 (Re-issued), Architect/Engineer
position. On February 13, 2004, the Manager, Design and Construction
(MDC) for the Northeast Area told complainant he desired to schedule
an interview in Connecticut. However, MDC later called complainant
on May 14, 2004, and informed him that the Architect/Engineer, EAS 21,
vacancy was cancelled and that, instead, the agency was advertising a
Professional Specialist Trainee, EAS 17/19/21, position. Complainant
requested clarification as to his application for Vacancy Announcement
No. 01896 since he had applied around the same time for Vacancy
Announcement No. 01895, which was also cancelled. Complainant did not
receive clarification.
With regard to claim (19), the record reflects that in response to an
e-mail, dated September 8, 2004, from the MMIP, complainant submitted
the required documentation to apply for a position in the MIP for the
Fall of 2004. The record indicates that management interns started
their program in June 2004; thereafter, senior agency officials decided
to offer Postal Area managers the opportunity to select additional
Management Interns from the group of qualified candidates who had been
previously recruited. Four Postal Areas expressed interest in hiring
additional Management Interns; Great Lakes Area, Northeast Area, New
York Metro Area and the Pacific Area. However, only the Northeast Area
decided to actually continue to hire additional staff. The previous
candidates, including complainant, were contacted to determine if they
were interested in being considered. Senior Human Resources management,
however, decided not to send the names of applicants who had already
been interviewed by the Northeast Area in April 2004, and had not
been selected by the Northeast Area. Therefore, complainant was not
referred for an interview since he was previously interviewed by that
Area's managers in April 2004, and had not been selected for the MIP
at that time. Complainant received a letter, dated November 22, 2004,
from the Manager of Personnel Operations Support, located within the
Corporate Personnel Management at Postal Service Headquarters, informing
him that had not been selected for the Fall 2004 MIP.
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).
With regard to claim (16), we find that the agency articulated legitimate
nondiscriminatory reasons for not selecting complainant for the Fall
2004 MIP. The affidavits from members of the selection panel from
the four areas indicated that the selectees for the positions were
better qualified than complainant based on the interviews and resumes.
Complainant argues that each of the resumes of the selected individuals
were not superior to his own. Also, complainant argues that the Human
Resource Manager from the New York Metro Area (NYHRM) stated that
complainant's graduate degree credentials were "stale." However, we
note that the NYHRM clarified the statement by stating that complainant
failed to indicate that he participated in any continuing education after
he received his MBA degrees. Therefore, we find that the statement that
complainant's credentials were "stale" is not sufficient on its own to
establish age discrimination.
In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court
held that to infer evidence of pretext from comparative qualifications,
an employee must show (1) that the disparities between the successful
applicant's and [her/his] own qualifications were "of such weight
and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
[complainant]" (Cooper v. Southern Co., 390 F.3d 695, 732 (2004));
or (2) that [complainant's] qualifications are 'clearly superior'
to those of the selectee (Raad v. Fairbanks North Star Borough School
Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)); or (3) that "a reasonable
employer would have found the [complainant] to be significantly better
qualified for the job," along with other evidence (Aka v. Washington
Hospital Center, 156 F.3d 1284, 1294 (C.A.D.C. 1998) (en banc)). We find
that complainant failed to proffer sufficient evidence to show that his
qualifications were such that a reasonable employer should have selected
him over the selectees for the MIP. Complainant merely puts forth his
own opinion about the quality of the resumes of the other candidates.
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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997). As such,
we find that complainant failed to establish, by a preponderance of the
evidence, that he was discriminated or retaliated against as he alleged.
With regard to claim (17), we find that the agency articulated
legitimate, nondiscriminatory reasons for cancelling the Vacancy
Announcement No. 08196. Specifically, during the selection process of the
original position of Vacancy Announcement No. 08196, all applications,
including complainant's, were reviewed and the applicants were found
to not be qualified by the Selecting Official. Vacancy Announcement
No. 08196 (Reissued) was issued on September 2, 2003, however, due to
an administrative error, complainant's application was not forwarded
to the appropriate office by the agency's headquarters. Complainant
contends on appeal that the investigation failed to address why the
administrative error occurred, however, we find that this alone is
insufficient to establish that the agency's proffered reason for not
selecting complainant, i.e., administrative error, was a pretext for
discrimination. Specifically, a Manager of Corporate Personnel provided
a sworn declaration, dated November 29, 2005, that complainant was not
qualified for the position since Vacancy Announcement No. 08196 was
open to "all qualified career Postal employees." While complainant was
previously employed at the agency, he was no longer an employee since he
was removed on December 23, 2003. Thereafter, complainant was no longer
eligible to be considered for the position. Complainant failed to offer
any evidence to rebut or otherwise call into question whether he was
qualified for the position. Complainant contends that the position was
open to all applicants, not just those employed by the agency, however,
we note that complainant failed to proffer any evidence to support his
position. Complainant's arguments alone are insufficient to establish
that the agency's proffered reasons were a pretext for discrimination.
As such, we find that complainant failed to proffer any evidence to
establish that the agency's reason for its action was a pretext for
national origin, sex, or age discrimination or retaliation.
With regard to claim (19), we find the agency articulated legitimate,
nondiscriminatory reasons for not selecting or forwarding complainant's
name for an interview. Specifically, management decided not to send the
names of applicants who had already been interviewed by the Northeast
Area in April 2004, and had not been selected by the Northeast Area.
Complainant argues that this exclusion, among other things, is a pretext
for discrimination. However, the Commission finds that complainant failed
to provide any evidence to substantiate his suspicions. As such, we
find that complainant failed to show by the preponderance of the evidence
that he was subjected to discrimination or retaliation as he alleged.
Therefore, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we find
that complainant failed to establish that he was discriminated against
or retaliated against as he alleged. The Commission affirms the agency's
finding of no discrimination or retaliation.
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
__9/10/07________________
Date
1 The record reflects that the appropriate Vacancy Announcement Number
is 08196, rather than Vacancy Announcement No. 01896, as provided by
complainant.
2 In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101,
117 (2002), the Supreme Court defined discrete acts as including matters
such as termination, failure to promote, denial of transfer, or refusal to
hire, i.e., acts that constitute separate actionable unlawful employment
practices.
3 Again, we note that the agency accepted claim (17) for investigation.
4 However, we note that during the course of the investigation, the MMIP
stated that he could not release the name of the individual selected
by the Northeast Area in the Fall of out of privacy considerations and
failed to provide the investigator with the resumes and the Form 991 or
Knowledge, Skills and Ability (KSA) for each of the successful applicants.
We remind the agency that the Commission's regulations and the Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), require agencies to develop a complete and impartial
factual record. See 29 C.F.R. � 1614.108(b); EEO MD-110, Chapter 6,
page 6-1 (November 9, 1999). Additionally, any employee of a federal
agency is required to produce documentary and testimonial evidence
as the investigator deems necessary. 29 C.F.R. � 1614.108(c)(1).
Nevertheless, during the pre-hearing discovery, the agency provided the
relevant documentation to the AJ and complainant. As such, we find that
the record is sufficiently complete for a decision on the merits.
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0120072493
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120071996