0120103606
07-20-2012
Raymond F. Eginton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Raymond F. Eginton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120103606
Agency No. 1G-731-0001-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 29, 2010 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Electronics Technician, PS-11, at the Agency's Oklahoma City, Oklahoma Processing and Distribution Center.
On December 8, 2006, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
on or about September 5, 2006, he was made aware that he had received an ineligible rating for numerous maintenance positions.
The record reflects that the Agency's Maintenance Selection System (MSS) provides for incraft employees to be given first priority to fill vacancies in the maintenance craft. Incraft employees are given the opportunity to fill a vacant position by submitting an application. The Agency's National Test Administration Center (NTAC) then scores each candidate based on a review of the candidate's responses to KSAs (knowledge, skills, and abilities), a supervisor evaluation, the result of an interview conducted by a review panel, and the results of a written examination. The NTAC scores are used to determine each candidate's standing on the Promotion Eligibility Register (PER) for each position.
The record further reflects that in April 2006, Complainant submitted an application to be considered for a promotion during the Agency's MSS Open Season period. The Manager Maintenance Operations issued Complainant's supervisor evaluation and two 3-member panels conducted his interviews. At the end of the MSS process, the application materials were sent to NATC, and Complainant was deemed "ineligible" for thirteen positions, including position ID Nos. M02, M11, M12, M14, M21, M22, M23, M24, M27, M30, M36, M40, and M41. Complainant received rating scores ranging from 64 to 70 for positions ID Nos. M13, M15, M38, and M42.
On May 25, 2007, the Agency issued a final decision finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination because Complainant neither established that he was treated differently than similarly situated individuals outside his protected group not demonstrated a causal connection between his protected activity and the alleged adverse action. The Agency also found that Complainant did not establish that Agency management's legitimate, nondiscriminatory reason for its actions - that he was found ineligible for multiple positions because he did not provide responses to all of his KSAs - was a pretext for unlawful discrimination.
On appeal, the Commission vacated the Agency's finding of no discrimination and remanded the matter to the Agency for further processing. Specifically, we found that the record was insufficient to allow a determination on the merits of Complainant's formal complaint. Specifically, the Commission noted that the record only contained a portion of Complainant's applications, affidavits and evaluation/rating information from three management officials who helped evaluate Complainant before his application package was sent to NATC and his MSS incraft rating summaries. Eginton v. United States Postal Service, EEOC Appeal No. 0120073093 (February 16, 2010).
Following the Commission's decision, the Agency conducted a supplemental investigation which is now the subject of the instant appeal.
In its July 29, 2010 final decision, the Agency again found no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming, arguendo, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The Agency noted that the Manager Maintenance Operations (MMO) stated that there are four parts to an open season application "to get put on a PER which is what [Complainant] completed. There is the Supervisor evaluation, which I did, the employee fills out a CSA Booklet in which he fills out his knowledge, skills and abilities (KSA's) in 31 different areas, an interview over the 31 areas and a written test. The Supervisor evaluation I completed was for all positions. The one evaluation covers many different jobs, as does the CSA booklet and interview." MMO stated that he rated Complainant "well . . . because I know his experience." MMO further stated that Complainant was interviewed by three named officials, and that the written test was administered.
MMO stated that when Complainant told him he received an ineligible rating and he "thought that it was not right. [Complainant] asked that I provide a copy of his interview worksheets to him." MMO stated that when he reviewed Complainant's interview sheet, he noted that Complainant did not fill out the CSA booklet completely. He left several KSA's blank which means that he was saying he had no knowledge in that area. Some of the area's he left blank were critical to the jobs he was applying for. The KSA's he left blank were 6, 11, 13, 14, 16, 17, 18, 28, 35, 36 and 38. When an employee leaves a KSA blank, he gets the lowest performance level for that KSA because he is saying he has no experience in that area. This is now we notate all applicants in the interview part of the process. I included the interview worksheet in the packet. This is the best reason I can come up with for [Complainant] not receiving a rating, although I do not know this for sure because the Supervisory Evaluation, CSA booklet, Interview Worksheet and the written test results all go to NTAC and they come up with the rating. I don't know anyone that knows how these four things are combined to come up with the rating except NTAC."
MMO stated that he told Complainant that he would need "to go through the update process to obtain a rating. This is what all employees must do to if they receive an ineligible rating as [Complainant] did." With respect to Complainant's allegation that three named employees were promoted while he was not promoted, MMO stated that all these employees "went through the process (Supervisor interview, fill out CSA booklet, interview and written test) the results of these four items were sent to NTAC and they received a rating from NTAC. The complainant received an ineligible rating from NTAC based on the same four above mentioned items consequently he was not placed on the PER (promotion eligibility register)."
The Supervisor, Maintenance Operations (SMO) stated that her only involvement of the rating process was during the interview. Specifically, SMO stated that during the interview, she asked Complainant why he did not respond to the KSA's and "he stated, that is appeared redundant; because the questions were the same for other positions that he was applying. I explained to him that he appeared to not have any interest in his application process, since he deliberately failed to follow instructions. [Complainant] apologized for being complacent toward this process."
The record contains a copy of Complainant's MSS Incraft Rating Summary. Therein, Complainant received ineligible ratings for the following positions: M02, M11, M12, M14, M21, M22, M23, M24, M36, M40 and M41. The record also reflects that Complainant received a rating of 64 for positions M13 and M38, a rating of 68 for position M42, and a rating of 70 for position 15.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he participated in the MSS "thinking he needed an Electronic Technician PS-10 rating to transfer. Complainant should have never been allowed to participate in the MSS process for that position."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 20, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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