0120132330
09-18-2013
Ulas Avci, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Ulas Avci,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120132330
Hearing No. 520-2012-00446X
Agency No. 1B024000212
DECISION
Complainant filed an appeal from the Agency's April 18, 2013, final order 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant worked as a Casual - Maintenance Building Services Custodian from October 7, 2010 through August 26, 2011, at the Brockton P&DC, in Brockton, Massachusetts. On August 22, 2011, the Agency terminated the employment of all Casual - Building Service Custodians nationwide.
On March 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Turkish) and national origin (Turkey) when, on December 26, 2011, he became aware of his non-selection to the position of postal support employee (PSE) custodian.
The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections,1 the AJ assigned to the case granted the Agency's February 8, 2013 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on March 15, 2013, finding Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency adopted the AJ's findings and the instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
The investigative record reflects Complainant applied for the position of PSE Custodian in Brockton on July 6, 2011. Complainant took the test for the PSE Custodian position and scored 88 points out of 100. This score placed him as number 7 on the hiring list. The hiring list was forwarded to the selecting official, and the hiring official then contacted the individuals on the list to set up interviews. Agency officials attempted to telephone Complainant at the number he gave them, but were unable to reach him to schedule an interview. Because Complainant was not interviewed, he was not selected.
In his decision, the AJ noted that the supervisor responsible for making the calls, as well as a co-worker, gave sworn affidavits that they attempted to reach Complainant but were unable to do so. The AJ found there was no evidence to support Complainant's position that no one made any effort to contact him. The AJ noted there was a telephone record from the supervisor showing Complainant's number. Thus, the AJ found there was undisputed evidence in the record to show that there were attempts to contact Complainant. The AJ also noted that although Complainant alleged there was nepotism in the selection process, he could not rely on Complainant's speculation. The AJ found Complainant failed to establish a prima facie case of discrimination because he did not successfully complete the application process.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the real issue is whether the Agency attempted to contact Complainant to schedule an interview. Undisputed evidence in the form of affidavits show that attempts were made, and a telephone record lists Complainant's telephone number. In addition, a co-worker attempted to contact Complainant. Complainant has not shown by a preponderance of the evidence, that the Agency's reasons for not selecting him were a pretext for discrimination. It was unable to schedule him for an interview, and as such he was not considered.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which adopted the AJ's finding that Complainant was not discriminated against as alleged.
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
September 18, 2013
__________________
Date
1 The record reflects that the AJ held a telephonic conference with Complainant and the Agency, wherein he went over the facts asserted to be undisputed with Complainant and Complainant was given the opportunity to respond.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120132330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132330