Jacob Kuri, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 8, 2007
0120072471 (E.E.O.C. Aug. 8, 2007)

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