0120072471
08-08-2007
Jacob Kuri, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jacob Kuri, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072471
Agency No. 4A117008806
DECISION
On April 27, 2007, complainant filed an appeal from the agency's March 30,
2007, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Lead Automotive Technician at the agency's Vehicle Maintenance
Facility in Hickville, New York. On November 20, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on
the basis of national origin (Middle East/Arab) when on August 22, 2006,
he was notified that he was not selected for either of two positions of
Supervisor, Vehicle Maintenance.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision (FAD) pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that he was subjected to discrimination as alleged. Specifically,
the agency found that complainant failed to establish a prima facie
case of national origin discrimination since he failed to show that the
comparators, who were selected for the position. (S1 and S2) were selected
under circumstances that would support an inference of discrimination.
Further, the agency found that even if complainant established a prima
facie case of national origin discrimination, the selecting official (SO)
articulated legitimate reasons for selecting S1 and S2 for the supervisory
positions at issue. Finally, the agency found that complainant failed
to establish that the agency's proffered reasons were a pretext for
discrimination.
On appeal complainant contends that the interview was biased since
only the SO was present and could fabricate his questions and S1
and S2's answers to justify selecting his friends for the position.
Complainant further contends that his qualifications were superior to
that of S1 and S2. The agency requests that we affirm the FAD.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). 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).
Assuming arguendo complainant established a prima facie case of national
origin discrimination, we find that the agency articulated a legitimate
reason for not selecting complainant. The SO, the Manager of Vehicle
Maintenance, stated in his affidavit that S1 and S2 performed better
in the interview, wore appropriate attire, and were recommended for the
position by their supervisors. SO stated that, in contrast, complainant
did not perform as well in the interview, wore jeans and a T-shirt, and
was recommended by only one supervisor. Complainant's other supervisor
responded "maybe" when asked if he would recommend complainant.
In order to establish that the agency's proffered reasons were a pretext
for discrimination, complainant argues that the interview was biased
since only the SO was present and could fabricate his questions and S1
and S2's answers to justify selecting his friends for the position.
We note that SO presented a sworn affidavit with detailed notes from
the interviews of complainant, S1 and S2. Complainant on appeal argues
that the SO altered his recollection of the interview process so that
he could select his friends. We note, however, that while we are not
convinced that preselection occurred here, the Commission has long held
that preselection, per se, does not establish discrimination under Title
VII when it is based on the qualifications of the selected individual
and not some basis prohibited by Title VII. McAllister v. United
States Postal Service, EEOC Request No. 05931038 (July 28, 1994).
Complainant has offered no evidence to substantiate his allegation that
the SO fabricated his questions and their answers to justify selecting
S1 and S2. Further, complainant failed to put forth any evidence that
the alleged preselection, if it occurred, was because of some basis
prohibited by Title VII.
Complainant on appeal also contends that his qualifications were superior
to S1 and S2. In nonselection cases, pretext may be found where the
complainant's qualifications are demonstrably superior to the selectees'.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case,
complainant failed to establish that he was demonstrably more qualified
for the position than S1 or S2. Although complainant argues that S1 does
not have the qualifications that he possesses and S2 never held a full
time position as an automotive mechanic in the postal service or private
sector as complainant has, we find that this alone is not sufficient
to rebut the agency's legitimate non-discriminatory reasons for not
selecting complainant. SO stated in his affidavit that S1 and S2 took
ten minutes each to elaborate on their answers during the interview, while
complainant took five minutes or less. Overall, S1's interview lasted two
hours and 15 minutes and S2's interview lasted 2 hours and 40 minutes,
however, complainant's interview lasted 45 minutes. Additionally, SO
stated that S1 and S2 performed better substantively since they provided
specific examples and clear answers while complainant's answers were vague
and unsubstantial. Additionally, SO asked each candidate's supervisors
if they would recommend their subordinate for the supervisor position.
S1 and S2's supervisors all agreed to recommend them to be supervisors;
however, only one of complainant's supervisors recommended him while
another only stated "maybe."
Furthermore, the record indicates that SO considered the attire worn
by the candidates. Complainant wore a T-shirt and jeans while S1 and
S2 wore a shirt and tie. SO stated in his affidavit that he believed
that complainant wearing a T-shirt and jeans did not portray an image of
respect and authority. Complainant failed to offer any evidence to rebut
the SO's statements regarding the interview. 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). Furthermore, an employer has even
greater flexibility in filling a management position due to the nature
of such a position. Wren v. Gould, 80 F.2d 493, 502 (6th Cir. 1987).
Additionally, we note that the record is completely void of any evidence
to demonstrate that the agency bore any unlawful animus toward complainant
regarding his race, national origin or prior EEO activity in this case.
Complainant's mere assertions, without any corroborating evidence,
are insufficient to establish that the agency was motivated by unlawful
reasons when he was not selected. For the reasons set forth above, we
find that complainant has failed to offer probative evidence demonstrating
that the agency's selection decision was based on prohibited bases
under Title VII. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
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
______8-08-07____________
Date
2
0120072471
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072471